[Federal Register: January 28, 2008 (Volume 73, Number 18)]
[Rules and Regulations]               
[Page 4720-4736]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2008-009; 92220-1113-0000; ABC Code: C3]
RIN 1018-AV39

Endangered and Threatened Wildlife and Plants; Revision of 
Special Regulation for the Central Idaho and Yellowstone Area 
Nonessential Experimental Populations of Gray Wolves in the Northern 
Rocky Mountains

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have revised 
the 2005 special rule for the central Idaho and Yellowstone area 
nonessential experimental population (NEP) of the gray wolf (Canis 
lupus) in the northern Rocky Mountains. Specifically, we have modified 
the definition of ``unacceptable impact'' to wild ungulate populations 
so that States and Tribes with Service-approved post-delisting wolf 
management plans (hereafter, referred to as wolf management plans) can 
better address the impacts of a recovered wolf population on ungulate 
herds and populations while wolves remain listed. We made other minor 
revisions to clarify the requirements and processes for submission of 
proposals to control wolves for unacceptable ungulate impacts. We also 
modified the 2005 special rule to allow persons in States or on Tribal 
lands with wolf management plans to take wolves that are in the act of 
attacking their stock animals or dogs. All other provisions of the 
special rule remain unchanged. As under the existing terms of the 2005 
special rule, these modifications do not apply to States or Tribes 
without wolf management plans or to wolves outside the Yellowstone or 
central Idaho NEP areas.

DATES: The effective date of this rule is February 27, 2008.

ADDRESSES: This final rule is available on the Internet at http://
www.regulations.gov. Once the complete decision file for this rule is 
completed it will be available for inspection, by appointment, during 
normal business hours at U.S. Fish and Wildlife Service, Office of the 
Western Gray Wolf Recovery Coordinator, 585 Shepard Way, Helena, 
Montana 59601. Call 406-449-5225 to make arrangements.

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


Previous Federal Actions

    In 1974, four subspecies of gray wolf were listed as endangered, 
including the NRM gray wolf (Canis lupus irremotus), the eastern timber 
wolf (C. l. lycaon) in the northern Great Lakes region, the Mexican 
wolf (C. l. baileyi) in Mexico and the southwestern United States, and 
the Texas gray wolf (C. l. monstrabilis) of Texas and Mexico (50 CFR 
17.11(h)). In 1978, we relisted the gray wolf as endangered at the 
species level (C. lupus) throughout the conterminous 48 States and 
Mexico, except for Minnesota where it was reclassified as threatened 
(50 CFR 17.11(h)). In 2007, we delisted the Western Great Lakes 
distinct population segment of wolves that includes all of Minnesota, 
Wisconsin, Michigan, and parts of North and South Dakota, Iowa, 
Illinois, Indiana, and Ohio (72 FR 6051, February 8, 2007). The 
Northern Rocky Mountain Wolf Recovery Plan was approved in 1980 (U.S. 
Fish and Wildlife Service 1980, p. i) and revised in 1987 (U.S. Fish 
and Wildlife Service 1987, p. i).
    On November 22, 1994, we designated unoccupied portions of Idaho, 
Montana, and Wyoming as two nonessential experimental population (NEP) 
areas for the gray wolf under section 10(j) of the Endangered Species 
Act of 1973, as amended (Act) (50 CFR 17.84(i)). One area is the 
Greater Yellowstone Area experimental population, which includes all of 
Wyoming and parts of southern Montana and eastern Idaho. The other is 
the central Idaho experimental population area, which includes most of 
Idaho and parts of southwestern Montana. In 1995 and 1996, we 
reintroduced wolves from

[[Page 4721]]

southwestern Canada into these areas (Bangs and Fritts 1996, pp. 407-
409; Fritts, et al. 1997, p. 7; Bangs, et al. 1998, pp. 785-786). These 
reintroductions and accompanying management programs greatly expanded 
the numbers and distribution of wolves in the northern Rocky Mountains 
(NRM). At the end of 2000, the NRM population first met its numerical 
and distributional recovery goal of a minimum of 30 breeding pairs and 
more than 300 wolves well-distributed among Idaho, Montana, and Wyoming 
(68 FR 15804, April 1, 2003; Service, et al. 2001, Table 4). This 
minimum recovery goal has been exceeded annually through 2007 (Service, 
et al. 2002-2006, Table 4, Service, et al. 2007, p.1).
    On January 6, 2005, we published a revised NEP special rule 
increasing management flexibility of these recovered populations for 
those States and Tribes with Service-approved wolf management plans (50 
CFR 17.84(n)). For additional detailed information on previous Federal 
actions, see the 1994 and 2005 NEP special rules (59 FR 60252, November 
22, 1994; 59 FR 60266, November 22, 1994; 70 FR 1286, January 6, 2005), 
the 2003 reclassification rule (68 FR 15804, April 1, 2003), the 
advanced notice of proposed rulemaking to designate the NRM gray wolf 
population as a distinct population segment and remove the Act's 
protections for this population (71 FR 6634, February 8, 2006), and the 
2007 proposal to designate the NRM gray wolf population as a distinct 
population segment and remove the Act's protections for this population 
(i.e., delist) (72 FR 6106, February 8, 2007).


    Addressing Unacceptable Impacts on Wild Ungulate Populations--Both 
the 1994 Environmental Impact Statement for wolf reintroduction 
(Service 1994, pp. 6, 8) and the 1994 NEP special rules addressed the 
potential impact of wolf restoration on State and Tribal objectives for 
wild ungulate management. The 1994 NEP special rules allowed, under 
certain conditions, States and Tribes to translocate wolves causing 
unacceptable impacts to ungulate populations (50 CFR 17.84(i)).
    On January 6, 2005, we published a new NEP special rule that 
allowed greater management flexibility for managing a recovered wolf 
population in the experimental population areas in the NRM for States 
and Tribes that had Service-approved wolf management plans (50 CFR 
17.84(n)). The 2005 NEP special rule allowed those States and Tribes to 
lethally control wolves to address unacceptable impacts to ungulate 
populations, under certain conditions. The 2005 NEP special rule also 
required that a State or Tribal proposal to control wolves describe 
data indicating the ungulate herd is below management objectives, data 
indicating impact of wolf predation on the herd, why wolf removal is 
warranted, the level and duration of wolf removal, how the ungulate 
response would be measured, and other remedies and conservation 
measures. The State or Tribe also had to provide an opportunity for 
peer review and public comment before submitting the proposal for 
Service approval. Before we could approve such proposals, we had to 
determine that the proposed wolf control was scientifically based and 
would not reduce the wolf population below recovery levels.
    The 2005 NEP special rule authorized lethal take because we 
recognized that the wolf population had exceeded its recovery goals, 
extra management flexibility was required to address conflicts given 
the recovered status of the population, most of the suitable wolf 
habitat in Idaho, Montana, and Wyoming was occupied by resident wolf 
packs, and wolf translocations were likely to fail because no 
unoccupied suitable habitat remained (70 FR 1294, January 6, 2005; 
Bradley, et al. 2005, p. 1506).
    The 2005 NEP special rule's definition of ``unacceptable impact'' 
was a ``State or Tribally-determined decline in a wild ungulate 
population or herd, primarily caused by wolf predation, so that the 
population or herd is not meeting established State or Tribal 
management goals. The State or Tribal determination must be peer-
reviewed and made available for review and comment by the public, prior 
to a final determination by the Service that an unacceptable impact has 
occurred, and that wolf removal is not likely to impede wolf recovery'' 
(50 CFR 17.84(n)(3)). This definition set a threshold that we have 
found over time did not provide the intended flexibility to allow 
States and Tribes to resolve conflicts between wolves and ungulate 
populations. Current information indicates that wolf predation alone is 
unlikely to be the primary cause of a reduction of any ungulate herd or 
population in Idaho, Montana, or Wyoming (Bangs, et al. 2004, pp. 89-
100). No populations of wild ungulates occur in Montana, Idaho, or 
Wyoming where wolves are the sole predator. Wolf predation is unlikely 
to impact ungulate population trends substantially unless other factors 
contribute, such as declines in habitat quality and quantity (National 
Research Council 1997, pp. 185-186; Mech and Peterson 2003, p. 159), 
other predators (Barber, et al. 2005, p. 42-43; Smith, et al. 2006, p. 
vii), high harvest by hunters (Vucetich, et al. 2005, p. 259; White and 
Garrott 2005, p. 942; Evans, et al. 2006, p. 1372; Hamlin 2006, p. 27-
32), weather (Mech and Peterson 2003, pp. 138-139), and other factors 
(Pletscher, et al. 1991, pp. 545-548; Garrott, et al. 2005, p. 1245; 
Smith, et al. 2006, pp. 246-250). However, in combination with any of 
these factors, wolf predation can have a substantial impact to some 
wild ungulate herds (National Research Council 1997, p. 183; Mech and 
Peterson 2003, pp. 155-157; Evans, et al. 2006, p. 1377) with the 
potential of reducing them below State and Tribal herd management 
    The unattainable nature of the threshold set in the 2005 NEP 
special rule became apparent soon after its completion. In 2006, the 
State of Idaho submitted a proposal to the Service that indicated wolf 
predation was impacting the survival of adult cow elk in the Clearwater 
area of central Idaho and that some elk populations in the Lolo and 
Selway zones in this area were below State management objectives (Idaho 
Department of Fish and Game 2006 pp. 11-12, Figures 1, 2, and 3). In 
the Clearwater proposal, the State of Idaho and the peer reviewers 
clearly concluded that wolf predation was not ``primarily'' the cause 
of the elk populations' decline, but was one of the major factors 
maintaining the elk populations' status below State management 
objectives. Declining habitat quality due to forest maturation was the 
primary factor affecting the populations' status, but black bear 
predation on elk calves, mountain lion predation on adults, and the 
harsh winter of 1996-1997 also were major factors. Data also clearly 
indicated that wolf predation was one of the major causes of mortality 
of adult female elk, which contributed to the elk populations remaining 
below State management objectives. After discussions with the Service, 
Idaho put their proposal on hold because the proposal did not meet the 
regulatory standard for unacceptable ungulate impacts set by the 2005 
special rule.
    In this NEP special rule, we have modified the definition of 
``Unacceptable impact'' in order to achieve the management flexibility 
intended by the 2005 NEP special rule. Specifically, we now define 
``Unacceptable impact'' as ``Impact to a wild ungulate population or 
herd where a State or Tribe has determined that wolves are one of the 
major causes of

[[Page 4722]]

the population or herd not meeting established State or Tribal 
population or herd management goals.'' This definition expands the 
potential impacts for which wolf removal might be warranted beyond 
direct predation or those causing immediate population declines. It 
would, in certain circumstances, allow removal of wolves when they are 
a major cause of the inability of ungulate populations or herds to meet 
established State or Tribal population or herd management goals. 
Management goals or their indicators might include population or herd 
numbers, calf/cow ratios, movements, use of key feeding areas, survival 
rates, behavior, nutrition, and other biological factors.
    Under this NEP special rule, as was the case in the 2005 NEP 
special rule, proposals for wolf control from a State or Tribe with a 
Service-approved wolf management plan will have to undergo both public 
and peer review. Based on that peer review and public comment, the 
State or Tribe will finalize the proposal and submit it to the Service 
for a final determination. This NEP special rule requires the following 
to be described in the proposal: (1) The basis of ungulate population 
or herd management objectives; (2) what data indicate that the ungulate 
herd is below management objectives; (3) what data indicate that wolves 
are a major cause of the unacceptable impact to the ungulate 
population; (4) why wolf removal is a warranted solution to help 
restore the ungulate herd to management objectives; (5) the level and 
duration of wolf removal being proposed; (6) how ungulate population 
response to wolf removal will be measured and control actions adjusted 
for effectiveness; and (7) demonstration that attempts were and are 
being made to address other identified major causes of ungulate herd or 
population declines or of State or Tribal government commitment to 
implement possible remedies or conservation measures in addition to 
wolf removal. Before wolf removals can be authorized, the Service must 
determine (1) if the State or Tribe followed the rule's procedures for 
submitting a proposal to remove wolves in response to unacceptable 
impacts; (2) if an unacceptable impact has occurred; (3) if the data 
and other information presented in the proposal support the recommended 
action; and (4) that the proposed removal would not contribute to the 
wolf population in the State below 20 breeding pairs and 200 wolves or 
impede recovery of the NRM wolf population.
    The NRM wolf population is a metapopulation comprised of three 
primary population segments: central Idaho, northwest Montana, and the 
greater Yellowstone area (GYA). These population segments are spatially 
separated but are not completely isolated from each other. Each 
population segment is comprised of a varying number of packs and 
individuals that disperse within segments and to other segments. 
Exchange of individuals from these segments also occurs with nearby 
wolf packs in Canada. The population segments in central Idaho, GYA, 
and to a lesser extent northwestern Montana, include core refugia, 
which are areas of relatively high concentrations of wolves on 
protected public lands (National Parks or Wilderness areas) or habitats 
with very few human-caused impacts. These refugia are primary sources 
for a continual supply of dispersing wolves. In this document, the term 
``NRM wolf population'' will mean this metapopulation, and the term 
``wolf population(s)'' will mean the segments within the NRM wolf 
    The minimum recovery goal for the NRM wolf population requires at 
least 30 breeding pairs and at least 300 wolves equally distributed in 
Idaho, Montana, and Wyoming (62 FR 15804). To ensure this goal is 
achieved, each of these States has committed to manage for at least 15 
breeding pairs in mid-winter (ILWOC 2002, p. 18; MWMAC 2003, App.1; 
WGFD 2007a, p. 4). This objective would provide a reasonable cushion to 
ensure each State's share of the wolf population does not risk falling 
below the minimum recovery goal of 10 breeding pairs and 100 wolves.
    Because this NEP special rule will likely result in more wolf 
control than is currently occurring, we have established safeguards to 
ensure that wolf control for ungulate management purposes would not 
undermine the objectives in the States' wolf management plans. 
Specifically, before any lethal control of wolves is authorized under 
this NEP special rule, we must determine that such actions will not 
contribute to reducing the wolf population in the State below 20 
breeding pairs and 200 wolves. This safety margin provides a buffer 
against unforeseen mortality events that might occur after such 
removal, and ensures that each State's ability to manage for 15 
breeding pairs would not be compromised. This limit is a necessary and 
advisable precaution while wolves remain listed to ensure the 
conservation of the species given the additional take that might be 
authorized pursuant to this rule.
    Providing this revision to the NEP special rule for additional 
management flexibility is appropriate because the NRM wolf population 
has met all its numerical, temporal, and distributional recovery goals 
(62 FR 15804). By middle of 2007, the NRM wolf population was estimated 
to contain 1,545 wolves in 105 breeding pairs (over 3 times the minimum 
numeric recovery goal for breeding pairs and more than 5 times the 
minimum population goal), and will exceed the minimum recovery levels 
for the 7th consecutive year. Montana had an estimated 394 wolves in 37 
breeding pairs, Idaho had 788 wolves in 41 breeding pairs, and Wyoming 
had 362 wolves in 27 breeding pairs.
    We do not expect this NEP special rule to adversely affect the 
species because wolf biology allows for rapid recovery from severe 
disruptions. After severe declines, wolf populations can more than 
double in just 2 years if mortality is reduced and adequate food is 
available (Fuller, et al. 2003, pp. 181-183). Increases of nearly 100 
percent per year have been documented in low-density suitable habitat 
(U.S. Fish and Wildlife Service, et al. 2007, Table 4). The literature 
suggests that in some situations wolf populations can remain stable 
despite annual human-caused mortality rates ranging from about 30 to 50 
percent (Keith 1983, p. 66; Fuller, et al. 2003, pp. 182-184). Given 
abundant prey availability, wolf populations can sustain such high 
levels of human-caused mortality due to their high reproductive 
potential and replacement of losses by dispersing wolves from nearby 
populations (Fuller, et al. 2003, pp. 183-185).
    Total mortality of adults in the NRM wolf population was nearly 26 
percent per year from 1994 to 2006, and the human-caused mortality was 
about 20 percent per year (Smith 2007). However, the NRM wolf 
population still continued to expand at about 24 percent annually 
(Service, et al. 2007, p. Table 4). These data indicate that the 
current annual human-caused mortality rate of about 20 percent in the 
adult portion of the NRM wolf population could be increased to some 
extent without causing the NRM wolf population to decline. Wolf 
populations and packs within the NRM wolf population are expected to be 
quite resilient to regulated mortality because adequate food supplies 
are available and core refugia provide a constant source of dispersers 
to replenish breeding vacancies in packs.
    Wolf populations within the portion of the NRM where this rule 
applies are characterized by robust size, high productivity, closely 
neighboring packs, and many dispersers (Service, et al. 2007, Figure 1; 
Jimenez, et al. in prep.).

[[Page 4723]]

Wolf populations now occupy most of the suitable wolf habitat in the 
NRM (Service, et al. 2007, Figure 1). These populations are unlikely to 
expand their current distributions because little unoccupied suitable 
habitat is available (Bradley, et al. 2005, p. 1506; Service, et al. 
2007, Figure 1). Because suitable habitat is nearly saturated, core 
refugia within these populations will continue to produce a large 
number of ``surplus'' wolves which will either fill in social vacancies 
within the core refugia, die, or disperse out of the core refugia. 
Therefore, the core refugia would have an abundant supply of wolves 
ready to fill any vacancies caused by agency control for unacceptable 
ungulate impacts. Even when entire packs are removed, new packs are 
likely to form. During wolf control for livestock depredation in 
Wyoming, the Daniel, Green River, Carter Mountain, and Owl Creek packs 
all reformed after they were entirely or almost entirely removed 
(Jimenez, et al. in prep, pp. 198-200). Bradley, et al. (in press, pp. 
8-13) found that, following the removal of wolves for livestock 
depredation in the NRM wolf population, the breeding status of packs 
was not greatly affected, regardless of breeding status of individuals 
or proportion of a pack removed.
    Furthermore, many ungulate herds and populations in Idaho, Montana, 
and Wyoming are at or above State management objectives and most of 
those below management objectives are most affected by factors other 
than wolves. Of the 78 elk game management units (GMU) in Idaho, 3 GMUs 
were identified to be below management objectives with wolves being one 
of the major causes of decline between 2003 and 2006 (IDFG 2006, pp. 
11-12, Figures 1, 2, and 3). Of the 35 elk herds in Wyoming, wolf packs 
were present in the area used by 7 herds. Wyoming Game and Fish 
Commission identified 3 of those 7 herds as either below management 
objectives or having calf/cow ratios indicating that the herd was 
likely to fall below management objectives soon (Wyoming Governor and 
Wyoming Game and Fish Commission 2005, pp. 5-6). Because nearly all 
suitable wolf habitat is now occupied in the NRM (Bradley, et al. 2005, 
p. 1506; Service, et al. 2007, Figure 1), the current wolf distribution 
is unlikely to significantly expand and wolves are not likely to begin 
affecting elk in many new areas. On the other hand, increasing wolf 
density within already occupied wolf habitat in some areas may cause 
increased impacts to those elk herds or other wild ungulate herds. 
Therefore, we expect the need for wolf control to be relatively 
confined to existing areas of wolf-ungulate impacts, although the need 
for control in those areas may increase as wolf density increases.
    Given the resilience of wolf populations, the current status of the 
NRM wolf population, and the number and location of ungulate 
populations or herds identified as below management objectives with 
wolves as one of the major causes, we determined that any increased 
mortality from wolf control actions under this rule would not affect 
the recovered status of the NRM wolf population in Idaho, Montana, or 
    Addressing Take To Protect Stock Animals and Dogs--The 1994 NEP 
special rules stated that any livestock producers on their private land 
may take (including to kill or injure) a wolf in the act of killing, 
wounding, or biting livestock (defined as cattle, sheep, horses, and 
mules) (50 CFR 17.84(i)). Similar provisions applied to livestock 
producers on public land if they obtained a permit from the Service (50 
CFR 17.84(i)).
    The 2005 NEP special rule expanded this provision to allow 
landowners in States with Service-approved wolf management plans to 
lethally take wolves that were ``in the act of attacking'' their 
livestock and any kind of dog on private land, where ``in the act of 
attacking'' was defined as ``the actual biting, wounding, grasping, or 
killing of livestock or dogs, or chasing, molesting, or harassing by 
wolves that would indicate to a reasonable person that such biting, 
wounding, grasping, or killing of livestock or dogs is likely to occur 
at any moment.'' (50 CFR 17.84(n)(3)). The expanded definition in the 
2005 NEP special rule also provided Federal land permittees the ability 
to take wolves in the act of attacking livestock on active public 
grazing allotments or special-use areas. The definition of 
``Livestock'' was expanded in 50 CFR 17.84(n)(3) as ``Cattle, sheep, 
horses, mules, goats, domestic bison, and herding and guarding animals 
(llamas, donkeys, and certain breeds of dogs commonly used for herding 
or guarding livestock). Livestock excludes dogs that are not being used 
for livestock guarding or herding.''
    The 1994 and 2005 NEP special rules did not cover some 
circumstances for potential damage of private property by wolves. For 
instance, landowners could lethally take wolves in the act of attacking 
dogs on their own private land, but could not do the same when on 
public lands unless the dogs were certain breeds of dogs being used for 
herding or guarding livestock and were being used for work on Federal 
lands under an active permit. Recreationists also could not lethally 
take wolves in the act of attacking stock animals used to transport 
people or their possessions.
    This NEP special rule adds a new provision for lethal take of 
wolves in States with Service-approved wolf management plans when in 
defense of ``stock animals'' (defined as ``a horse, mule, donkey, 
llama, or goat used to transport people or their possessions'') or any 
kind of dog. Specifically, this modified NEP special rule states that 
``any legally present person on private or public land except land 
administered by the National Park Service may immediately take a wolf 
that is in the act of attacking the individual's stock animal or dog, 
provided there is no evidence of intentional baiting, feeding, or 
deliberate attractants of wolves. The person must be able to provide 
evidence that taken wolves were recently (less than 24 hours) in the 
act of attacking stock animals or dogs, and we or our designated agents 
must be able to confirm that the wolves were in the act of attacking 
stock animals or dogs. To preserve evidence that the take of a wolf was 
conducted according to this rule, the carcass of the wolf and the area 
surrounding should not be disturbed. The take of any wolf without such 
evidence of a direct and immediate threat may be referred to the 
appropriate authorities for prosecution.''
    Since 1995, only 60 wolves (about 9 percent of the 672 wolves 
legally removed in agency-authorized control actions) have been legally 
killed by persons in defense of their private property in the NRM. Wolf 
depredations on stock animals accompanied by their owners have not been 
documented in the past 12 years, but a few instances of stock animals 
being spooked by wolves have been reported. Two wolves have been taken 
by Federal land permittees as wolves chased and harassed horses in 
corrals or on pickets. While this revision provides additional 
opportunity for persons to protect their private property, these 
instances are likely to be rare. Therefore, we expect no impacts on the 
recovered status of the NRM wolf population from this additional 
flexibility in the rule.
    Reports confirm that 101 dogs have been killed by wolves from 1987 
to 2007 (Service, et al. 2007, Table 5, Service 2008, p. 1), but no 
wolves are known to have been killed solely to protect dogs. We know of 
one credible and one unconfirmed report of wolves killing pet dogs 
while humans have been nearby (USDA 2007, p. 1). Wolves have killed at 
least 35 hunting hounds, primarily on public land. In only a few of 

[[Page 4724]]

instances, the hounds' owners were close enough that they might have 
been able to better protect their dogs by shooting at the wolves 
involved. Although we expect that take of wolves involved in conflicts 
with pet dogs or hunting hounds would be rare, these reports indicate 
that such instances could occur. This modification would allow persons 
in States with Service-approved wolf management plans to protect their 
dogs from wolf attacks.
    Dispersing wolves would quickly fill vacancies created by any take 
of wolves to protect stock animals and dogs. Because such take of 
wolves is expected to be extremely low, cumulative impacts of this take 
combined with agency control for ungulate impacts would be negligible.

Summary of Peer Reviews

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), and the Office of Management 
and Budget's (OMB) Final Information Quality Bulletin for Peer Review, 
dated December 16, 2004, we solicited independent review of the science 
in the proposed NEP special rule from ten experts on wolves, ungulates, 
or predator-prey relationships. The purpose of such review was to 
ensure that our decisions on the proposed revisions to the 10(j) 
special regulations were based on scientifically sound data, 
assumptions, analyses, and conclusions. All ten peer reviewers 
submitted comments on the proposed rule. We considered their comments 
and recommendations as we made our final decision on the proposed 
revisions. Substantive peer reviewer comments are summarized in the 
remaining paragraphs of this section as well as discussed in greater 
detail in the appropriate Issue/Response sections that follow.
    All eight peer reviewers who specifically stated an opinion on the 
soundness of our proposed revisions regarding management of wolves for 
impacts to ungulates confirmed that our approach was reasonable. Seven 
of them provided additional considerations and recommendations. The 
remaining two peer reviewers raised some concerns and recommendations 
described below, but did not explicitly express opposition or support 
to the proposed revisions.
    In general, the peer reviewers agreed with our conclusion that wolf 
predation is never the primary cause of ungulate population impacts but 
can be among major contributing factors. They also generally confirmed 
that the proposed safeguards are appropriate for ensuring that wolf 
control under the revised special regulations would not compromise wolf 
recovery in the NEP areas of the NRM. While none of the peer reviewers 
expressed concern that such wolf control would adversely impact wolf 
recovery, four reviewers questioned a claim in the proposal regarding 
the level of mortality wolf populations could sustain while maintaining 
positive growth. Four peer reviewers believed the proposed safety 
margin of 20 breeding pairs and 200 wolves and other safeguards were 
adequate to prevent impacts to wolf recovery, while two questioned the 
necessity of the additional safety margin given the resilience of wolf 
populations to relatively high mortality.
    Two peer reviewers expressly stated that the proposed criteria, 
required in the NEP special rule, for Service approval of State or 
Tribal wolf control proposals were adequate or ``sufficiently 
rigorous.'' Three others indicated that the standards should be made 
more specific. One reviewer thought the proposed NEP special rule did 
not clearly identify criteria for assessing whether a wolf control 
program will result in ungulate population recovery. Their suggestions 
for improving the standards included requiring effectiveness monitoring 
and that we suggest the kind of data to be used for determining wolf 
predation impacts and ungulate population vigor.
    Three reviewers raised a concern for a potential lack of biological 
validity of ungulate management objectives set by a State or Tribe. 
Their concerns included objectives that may be based on historical 
ungulate population levels in the absence of wolves, desired hunter 
harvest, or without consideration for the inverse relationship between 
density and productivity in ungulate populations.
    Two peer reviewers indicated that the NEP special rule should 
explicitly require States and Tribes to address other major factors 
affecting ungulate populations along with wolf control. Two peer 
reviewers recommended that we define ``major'' for the purpose of 
determining when wolves may be one of the major causes of unacceptable 
ungulate impacts.
    Two peer reviewers agreed that the proposed revised NEP special 
rule provided an appropriate, transparent review process to ensure 
science-based decisions, but another reviewer warned that, due to the 
complexities of predator-prey relationships and other influencing 
factors, trusting the peer review process to catch and identify all 
interactions that should be considered in a control program may be 
    One peer reviewer expressed a preference that hunting and trapping 
be used as methods of wolf control over aerial gunning or poisoning for 
more public acceptance of control programs. He did not make a 
recommendation that the preferred methods be required. None of the 
other peer reviewers offered opinions on control methods.
    The six peer reviewers who specifically addressed the revisions 
addressing lethal take of wolves for the protection of stock animals 
and dogs stated that our approach was reasonable. There was general 
agreement that this additional protection was not likely to result in a 
level of take that would affect wolf populations. One reviewer agreed 
with our opinion that it might increase public tolerance of wolves.
    One peer reviewer asked what kind of evidence would support a claim 
of ``harassment'' where physical evidence may be lacking. He 
acknowledged that such specifics need not be incorporated into the 
rule, but cautioned that the Service develop sound procedures 
addressing this issue to prevent abuse.

Summary of Comments and Recommendations

A. Soliciting Public Comment

    In our July 6, 2007, proposed rule (72 FR 36942), we requested that 
all interested parties submit comments or information that might aid in 
our decisions or otherwise contribute to the development of this final 
rule. We also contacted the appropriate Federal, State, and local 
agencies, Tribes, and scientific and other interested parties and 
organizations and invited them to comment on the proposed rule. We 
conducted numerous press interviews to promote wide coverage of our 
proposed rule in the media. We published legal notices in many 
newspapers announcing the proposal and hearings and invited comment. We 
posted the proposal and numerous background documents on our Web site, 
and we provided them upon request by mail or e-mail and at our hearings 
and informational meetings. We established several avenues for 
interested parties to provide comments and other information, including 
verbally or in writing at public hearings, by letter, e-mail, or 
facsimile transmission.
    The initial comment period was open from July 6, 2007, through 
August 6, 2007. During that period, we publicized and conducted public 
hearings on the proposed revised special rule in Cody, Wyoming, on July 
17, 2007; in Helena, Montana, on July 18, 2007; and in Boise, Idaho, on 
July 19, 2007. We also held general public meetings on the same day

[[Page 4725]]

of each hearing to provide additional information and explain our 
proposal. At these meetings, we also offered the public opportunity to 
ask questions and provide input.
    A second comment period was opened from September 11, 2007, through 
October 11, 2007, to provide the public additional opportunity to 
review and comment on the proposal concurrent with a public comment 
period on the draft environmental assessment (EA) of the proposed 
    At the three hearings, 54 people testified, and we received 19 
written comments. During the first comment period, we received more 
than 176,000 comments by e-mail. During the second comment period, we 
received about 86,000 additional comments by e-mail. We received a 
total of approximately 450 mailed and faxed comments. Comments were 
submitted by a wide array of parties, including the general public, 
environmental organizations, hunting and outfitter's groups, Tribes, 
agricultural agencies and organizations, and Federal, State, and local 
government agencies. Comments originated from throughout the country 
and even from people in a few other nations.
    The Wyoming Game and Fish Department submitted a letter commenting 
on the proposed NEP special rule on August 3, 2007 (WGFD 2007b). On 
October 22, 2007, the Wyoming Governor issued a letter (Wyoming 
Governor 2007) describing how several stipulations in Wyoming law 
related to delisting and management of the gray wolf are being 
resolved. One of these stipulations included modifications to the NEP 
special rule. The Wyoming Governor stated that in light of the 
resolution of this stipulation, the comments submitted on the proposed 
NEP special rule are now superseded and do not require our response. 
Therefore, we do not respond to the comments from the Wyoming Game and 
Fish Department in this document. However, we have responded to similar 
comments if they were raised by other parties.
    Substantive comments and new information received from peer 
reviewers and the public during the comment period have either been 
addressed below or incorporated directly into this final rule. Related 
comments (referred to as ``Issues'') are grouped together below and are 
followed by our responses. In addition to the following discussion, 
refer to the ``Changes From the Proposed Rule'' section for more 
details. We received thousands of messages supporting and protesting 
the proposed revisions that did not include substantive comments or new 
information. Although we reviewed these messages, the number of 
opinions was not part of the basis of our decisions on the final rule.

B. Technical and Editorial Comments

    Issue 1--Peer reviewers and commenters provided editorial 
suggestions, information updates, and corrections to literature 
citations. Some peer reviewers thought we misstated conclusions from 
the Oakleaf, et al. (2006, pp. 554-559) study. One peer reviewer asked 
if we could provide any published citations besides the personal 
communication (Smith 2005) regarding a 26 percent mortality rate in the 
NRM wolf population.
    Response 1--We corrected and updated numbers and other data where 
appropriate. We edited the preamble to the rule to make its intent and 
purpose clearer.
    The reference year for the Oakleaf, et al. (2006, p. 556) wolf pack 
home range analysis was 2000. The study indicated that at that time 
relatively large tracts of suitable wolf habitat remain unoccupied in 
the Rocky Mountains (Oakleaf, et al. 2006, p. 554). Since then, the 
wolf population continued to grow, as the study predicted, to 1,545 
wolves in summer 2007 (Service 2008, p. 1), and most habitat predicted 
by Oakleaf, et al. (2006, Figure 2) as suitable is now occupied 
(Service, et al. 2007, Figure 1). We have corrected the citations and 
text in the rule's preamble to reflect this information.
    The data on wolf survival and mortality in the NRM has not been 
published yet, but Smith (2007) is currently preparing it for 
publication. We have determined that the data, although not yet 
published, constitutes the best scientific data available on wolf 
survival and mortality in the NRM. This information was gathered and 
compiled by State, Tribal, and Federal members of the Interagency Wolf 
Recovery Team and entails data from over 900 radio-collared wolves in 
the NRM population since 1994.
    Issue 2--A few commenters expressed confusion over the difference 
between the 1994 and 2005 rules and the revised rule because we did not 
include the entire 50 CFR 17.84(n) regulations in the Federal Register 
notice for the proposed rule. Some thought we would now have four 
different 10(j) rules in place.
    Response 2--In 1994 we promulgated special regulations at 50 CFR 
17.84(i) for the reintroduction of two NEPs of the wolf in the NRM. In 
2005, we modified the NEP special rule, 50 CFR 17.84(n), and we are 
doing so again in this rule. This approach does not result in multiple 
sets of these regulations. The regulations in 50 CFR 17.84(i), which 
apply to States and Tribes without wolf management plans, will remain 
the same, and the revised regulations in 50 CFR 17.84(n), which apply 
to States and Tribes with wolf management plans, will supersede the 
2005 edition. We have included additional explanation in this rule's 
preamble to ensure clarity of the changes.
    Issue 3--Some peer reviewers questioned the claim in the proposed 
rule that the literature indicates that wolf populations could sustain 
an annual human-caused mortality of 30 percent or more. One peer 
reviewer pointed out that this statement does not provide an upper 
bound on mortality rate and, therefore, could be misleading. Another 
did not recommend that such a high rate of mortality be allowed, but 
acknowledged that the rule's safeguards would preclude this concern.
    Response 3--We corrected the rule's preamble to indicate that the 
literature indicates that some wolf populations could remain stable at 
mortality rates of around 30 to 50 percent.
    Issue 4--Several commenters questioned the need for the proposed 
revisions because they believed that the 2005 special regulation 
already allows for control of wolves because of ungulate impacts. Many 
expressed the concern that the biology and current ungulate herd and 
population numbers do not justify a need for increasing flexibility for 
wolf control. A few commenters did not think increasing flexibility to 
control wolves to protect stock animals was necessary because the 
current special regulations already allow wolf control to protect 
livestock or because there is no evidence that wolves attack stock 
    Response 4--As explained in the proposed rule and the preamble of 
this final rule, the 2005 NEP special regulations did not provide 
States and Tribes the intended flexibility to control wolves causing 
unacceptable impacts to ungulate herds or populations because such 
impacts have never been shown to be ``primarily caused by wolf 
predation.'' Thus, the wording in the definition of ``unacceptable 
impact'' to a wild ungulate population or herd in the 2005 special 
regulation set an unattainable standard for approval of wolf control 
and no State or Tribe was able to use the special rule for that 
purpose. The revision of the definition of ``unacceptable impact'' to 
include wolves as ``one of the major causes'' now provides the intended 
flexibility for wolf management by States and Tribes.

[[Page 4726]]

    We acknowledged in the preamble of the revised rule and final EA 
that many ungulate populations and herds currently are at or above 
States' management objectives. However, we also are aware of a few 
instances where herds are not meeting or soon may not meet those 
objectives, and evidence indicates that wolves are one of the major 
causes of the failure to maintain those objectives (Wyoming Governor 
and Wyoming Game and Fish Commission 2005, pp. 5-6; IDFG 2006, pp. 11-
12, Figures 1, 2, and 3). The intention of this revision is to provide 
States and Tribes the flexibility to control wolves in such localized 
situations. We expect that such situations will continue to be few, 
and, along with the safeguards in the revised NEP special rule, 
resulting take of wolves would not have a meaningful impact on wolf 
populations and would not affect recovery of the NRM wolf population.
    The terms ``livestock'' and ``stock animals'' were confusing to 
some commenters who thought the revision to increase wolf control 
flexibility for the latter is unnecessary. Although the animals listed 
in ``livestock'' overlap with some ``stock animals'' (e.g., horse, 
mule, donkey, llama), the latter refers to animals used for transport 
of people or their possessions. The revision does not supplant the 
definition of livestock with that of stock animals. The 2005 special 
regulation did not allow any person on public land, who was legally 
present but did not have a land-use permit to graze livestock or 
operate an outfitter or guiding business, to kill wolves in defense of 
these animals. For example, an individual using a llama to pack-in gear 
while recreating on public lands for his or her enjoyment was not 
allowed to lethally take a wolf to protect that llama under the 2005 
special regulation. The revised special regulation now allows anyone 
legally present on private or public land, except land administered by 
the National Park Service, to lethally take wolves in defense of 
horses, mules, donkeys, llamas or goats that are being used to 
transport people or their possessions. The 2005 rule also did not allow 
outfitters and guides or the public on public land to take wolves to 
protect hunting dogs. The revised rule now allows anyone legally 
present on private or public land, except land administered by the 
National Park Service, to take wolves in defense of any dog.
    While there have been no reports of wolves depredating stock 
animals accompanied by their owners in recent years, some reports 
indicate that wolves have been close enough to spook stock animals. Two 
wolves have been taken by Federal land permittees as wolves chased and 
harassed horses in corrals or on pickets. This demonstrates that wolves 
may occasionally attack stock animals. The increased flexibility in the 
revised special regulation will allow owners to protect their private 
property in the few instances when this type of situation may occur.
    Issue 5--A large proportion of commenters were alarmed because they 
believed that the revisions to the 2005 NEP special rule would allow 
States and Tribes to kill wolves in large numbers, reduce populations 
to the minimum recovery numbers, or even reduce them below recovery 
levels. Others thought that the safety margin of 20 breeding pairs and 
200 wolves per State was not adequate based on population viability 
analysis theories. Some stated that the constraints in the rule on wolf 
control are not adequate to prevent abuse of the increased management 
flexibility and that wolves could be killed for reasons other than 
those described. Others thought the rule would allow ``open season'' or 
public hunting of wolves. On the other hand, some supporters of the 
revised rule expressed belief that a wolf population explosion has 
decimated elk and moose populations. They advocated killing as many 
wolves as possible by any means necessary.
    Response 5--The minimum numerical and distributional recovery goal 
for the NRM wolf population is at least 10 breeding pairs and at least 
100 wolves in each of the States of Idaho, Montana, and Wyoming (62 FR 
151804). Under this modified special rule, a State cannot be authorized 
to control wolves for ungulate population impacts if such control would 
contribute to reducing wolves to below 20 breeding pairs and 200 wolves 
in that State. These numbers are twice the minimum recovery goals. 
Therefore, this NEP special rule should not result in the reduction of 
the NRM wolf population to minimum recovery numbers. Furthermore, this 
NEP special rule's restriction preventing wolf control below 20 
breeding pairs and 200 wolves does not mean that States and Tribes will 
be allowed to eliminate all wolves above those levels. This is only one 
of many prerequisites. As in the 2005 special rule, this modified NEP 
special rule requires States and Tribes to address specific criteria in 
their proposals for wolf control and follow rigorous peer review, 
public comment, and Service approval processes before control can be 
authorized. The State or Tribe proposing to control wolves would have 
to demonstrate that an ungulate herd or population cannot meet 
management objectives and wolves are one of the major causes. They also 
have to scientifically demonstrate that wolf control is warranted and 
the proposed level and duration of wolf control is appropriate for 
addressing the impacts to ungulates.
    As explained in the preamble, many of the elk populations in the 
NEP areas are currently at or above State management objectives and 
only a few elk herds or other ungulate populations are considered to be 
declining or low due to wolf predation. We also explain in the preamble 
that core refugia in the NRM would supply a constant source of 
dispersers to fill in vacancies created by agency control. Because 
agency control of wolves is likely to occur in only a few discrete 
areas, the movement of dispersers between packs and populations, and 
thus connectivity, would not be disrupted.
    This rule applies only to wolves in the two NRM NEP areas in States 
with Service-approved wolf management plans. Control of wolves in 
national parks and other lands administered by the National Park 
Service, as well as wolves listed as endangered, is not authorized by 
this rule.
    Furthermore, the standards in this NEP special rule for approving a 
wolf control proposal would not allow wolves to be killed for just any 
reason. In their proposal, the State or Tribe must describe impacts 
from wolves on the ungulate herd or populations and demonstrate in the 
proposal that wolf control is warranted for relieving unacceptable 
impacts to ungulate herds or populations. If effects to ungulates by 
wolves are not among the major causes of the inability to achieve 
management objectives, wolf control would not be appropriate.
    Based on records of wolf threats or attacks on dogs and stock 
animals, the number of incidents in which wolves might be taken under 
the modified special rule for these purposes is expected to be very 
small. Furthermore, when one wolf out of an attacking group is shot, 
the rest of the wolves almost invariably flee. Fleeing wolves could no 
longer be ``in the act of attacking'' and taking of such wolves would 
be in violation of the law. Therefore, we fully expect that abuse of 
the law and taking of more than one wolf during each incident to be 
    This modified NEP special rule does not authorize open public 
hunting nor would it allow States or Tribes to use public hunting as a 
method for controlling wolves causing unacceptable impacts to 
ungulates. A State or Tribe may choose to enlist persons as designated 
agents of that agency to conduct highly controlled damage hunts

[[Page 4727]]

on private property for controlling wolves, but this method would need 
to be included in their proposal and subject to all the NEP special 
rule's criteria and procedural requirements for our approval.
    Evidence does not support the belief that wolves are decimating 
ungulate populations in the NRM. Currently many elk populations are at 
or above management objectives in Idaho, Montana, and Wyoming. Some 
populations of other ungulates, such as mule deer, bighorn sheep, and 
moose are depressed in some areas, but this is mostly due to causes 
other than wolf predation, such as disease and poor habitat quality. 
The need for wolf control to help restore ungulate herds or populations 
to State or Tribal management objectives is not pervasive, and 
uncontrolled removal of wolves is not necessary, appropriate, or 
allowable under this NEP special rule.
    We agree that wolf populations tend to be resilient to regulated 
human-caused mortality. However, because we anticipated that the 
revised NEP special rule may result in more killing of wolves than is 
currently occurring, we established measures to ensure that wolf 
control for ungulate management purposes would not undermine wolf 
recovery goals or the States' ability to manage for 15 breeding pairs 
as obligated by their Service-approved wolf management plans. Most peer 
reviewers noted that the rule's safeguards and safety margins were 
adequate to prevent abuse and that the revisions would result in little 
impact to the recovered wolf population. No peer reviewer expressed 
concern that the revisions would result in significant impacts to the 
recovered NRM wolf population or that the rule's safety margin is 
inadequate. Two peer reviewers questioned the necessity of the 
additional safety margin of 20 breeding pairs and 200 wolves in 
consideration of the resilience of wolves to take and the current 
recovery level safety margin of 15 breeding pairs required by the 
States' Service-approved wolf management plans. The additional safety 
margin of 5 breeding pairs above the 15 breeding pairs the States will 
manage for is the same size of the safety margin over the 10 breeding 
pairs necessary for delisting. This buffer is intended to prevent the 
compromise of State wolf management objectives from unforeseen events 
that may cause wolf declines in combination with the additional 
mortality from wolf control.
    Issue 6--We received a number of comments, including from two peer 
reviewers, that the term ``major causes'' in the proposed revised 
definition of ``unacceptable impacts'' be further defined. One of the 
peer reviewers suggested some criteria to consider. Some commenters 
said that long-term studies would be necessary to show that wolves are 
one of the major causes of ungulate declines.
    Response 6--Consideration of whether wolves are one of the major 
causes of ungulate population declines would require comparing the 
significance of the wolf impact with that of the other causes. Because 
the relationship between wolf predation and ungulate populations is 
very complex (Mech and Peterson 2003, pp. 146) and because a host of 
other interconnected local factors can influence how it might affect 
ungulate populations (Garrott, et al. 2005, pp. 1245), we could not 
predict all the specifics in each way wolves could be one of the major 
causes of ungulate impacts. If we attempted to develop a specific list 
of required criteria, we may unintentionally exclude other valid 
conditions. Furthermore, even the suggested criteria from the peer 
reviewer included some level of subjectivity (e.g., ``high 
proportion,'' ``strong evidence,'' ``excessive'') that would require 
further definition. Therefore, we believe that the validity of a 
State's claim that wolves are a major cause of ungulate impacts would 
be better determined on a case-by-case basis, where such a 
determination will depend upon the adequacy of the data and science 
describing the conditions, and their relative importance, contributing 
to ungulate herd or population declines. We would rely on professional 
evaluation and judgment inherent in the required peer reviews and our 
approval process to ensure that such determinations are appropriate.
    Due to the complexity of wolf-ungulate interactions, it may be 
difficult to unequivocally prove that wolves are one of the major 
causes of ungulate decline. However, reasonable inferences can 
sometimes be made by comparing ungulate herds or populations with 
similar environmental conditions where wolves are absent, are present 
in much smaller numbers, and are present in similar or larger numbers. 
We would consider this information along with other data required by 
the NEP special rule and the soundness of the science presented in the 
    Issue 7--We received several suggestions that the States should be 
required to demonstrate that they are addressing other major causes of 
ungulate herd or population declines in concert with wolf control. 
These suggestions were in response to an interpretation that the rule 
requires the States or Tribes merely to describe the other major causes 
in their proposals. We also received a comment that the State may not 
have control over all other major causes, such as climate change.
    Response 7--Our intent was that States or Tribes would need to 
demonstrate that they have attempted to address other major causes or 
that they are committed to do so in concert with wolf control. We have 
refined the wording in the rule so that it more clearly expresses that 
intent (see Changes From the Proposed Rule section). We would not 
disapprove a proposal merely because the State or Tribe has no power to 
address certain other causes of ungulate declines. However, we would 
expect the proposal to describe why the State or Tribe does not have 
control over those issues and how they otherwise might be addressed.
    Issue 8--Some commenters stated that social effects to wolf packs 
from killing alpha males and females (i.e., breeders) were not 
considered, nor were effects to pack structure and productivity from 
killing subadults and pups. Others thought removing entire packs would 
fragment populations and prevent genetic exchange.
    Response 8--As explained in the preamble, wolf packs and 
populations are known to be very resilient to a number of causes of 
mortality, including human-caused, as long as there is adequate food 
and a surrounding population with dispersing individuals to provide 
replacements. Ultimately, the population's productivity in terms of 
recruitment and immigration is what allows it to persist under human 
harvest (Fuller, et al. 2003, pp. 184-185). Populations with average or 
high productivity can withstand higher levels of take, especially if 
populations that can provide replacements are nearby (Fuller, et al. 
2003, pp. 184-185). Population size, proximity of other wolf packs, and 
the number of dispersing wolves influence the frequency with which 
alpha males and females will be replaced (Brainerd , et al. in press, 
pp. 15-16). Wolf populations in the NRM where this rule applies are 
characterized by robust size, high productivity, and closely 
neighboring packs, and have many dispersers (Jimenez, et al. in prep). 
Therefore, social vacancies, whether from loss of breeders or 
nonbreeders, in these areas are likely to be quickly filled by 
dispersing wolves or other wolves within the pack. Often subadults and 
pups are the first to be removed in wolf control programs because they 
tend to be naive and, therefore, more vulnerable to take. Vacancies 
from loss of subadults and pups, like other age-class vacancies,

[[Page 4728]]

are likely to be readily filled by dispersers or new offspring, given 
the ready supply of dispersers from core refugia in the NRM. If an 
entire pack is removed, a new pack is likely to form for the same 
reasons as described earlier in this preamble. Therefore, gaps that 
would fragment populations and disrupt genetic exchange are not likely 
to occur in the NRM wolf population.
    Issue 9--Some commenters stated that localized wolf control would 
create population sinks that deplete nearby source populations. Others 
thought wolf control to relieve unacceptable ungulate impacts would be 
futile because wolves would constantly fill in vacancies created by 
control actions.
    Response 9--We agree that the vacancies created by wolf control (or 
other forms of wolf mortality) are likely to be filled with wolves from 
other packs. However, in the NRM this situation is not likely to 
constitute a population sink that depletes or affects stability of 
source populations (core refugia). Wolves disperse from their natal 
packs regardless of human-caused mortality elsewhere. Wolf populations 
and packs routinely turn over members (Mech 2007). Vacancies created by 
wolf control are most likely to be filled by young adult dispersers 
that leave their packs because they are unable to breed or as an 
evolutionary strategy to avoid inbreeding (VonHoldt, et al. 2007), 
because they are attempting to increase access to food (Mech and 
Boitani 2003, p. 12), or due to social tensions in their natal pack 
(Mech and Boitani 2003, p. 13). Such individuals would not have 
directly contributed, through breeding, to the productivity of the 
packs they left. Although some of these dispersers may have filled 
other vacancies within the source population and had the potential to 
breed there, those vacancies will be quickly filled by other dispersing 
wolves or wolves within those packs (Fuller, et al. 2003, p. 181 and 
183). As described earlier in this preamble, core refugia in the NRM 
wolf population provide a constant source of dispersers. While removing 
a pack may draw another pack into that area, approved wolf removal 
under this rule will not be at a rate and level (see preamble) that 
would create a void large and long enough in the core refugia to impact 
the stability of the wolf populations in the NRM.
    While vacancies created by wolf control are likely to be filled, 
wolf density in the control area could be temporarily lowered to the 
extent that would allow the ungulate herd or population to respond, 
depending on the proposed level and duration of control. For example, 
control on an annual basis for 3 to 5 years may decrease predation and 
relieve impacts to the herd or population enough to allow the 
population to return to management objective levels. As long as other 
major causes of ungulate population impacts have been addressed, the 
lowered post-control wolf density should allow the ungulate herd or 
population to remain at management objectives. Wolf removal as 
envisioned under this rule is limited in time until the ungulate herd 
meets its management objectives or until it is evident that wolf 
removal is not having a positive effect on the herd's status. If the 
required monitoring shows that the desired results are not achieved 
under the terms of the approved proposal, we would expect the State or 
Tribe to reevaluate whether continued control is warranted. If wolf 
densities and ungulate depredation return to levels that cause the 
ungulate herd or population to decline below management objectives 
again, the State or Tribe would need to submit another proposal under 
the processes required by this rule.
    Issue 10--Commenters provided several reasons why they believe the 
NEP special rule was inappropriate, such as: (1) Wolves keep ungulate 
herds healthy by culling the sick and weak; (2) it allows killing of 
wolves for preying on their natural prey; (3) wolves are keystone 
predators that play an important role in the ecosystem; and (4) wolves 
decrease impacts of ungulate herds on riparian vegetation.
    Response 10--Although wolves often prey on the less fit individuals 
of a prey population, they can also kill healthy animals resulting in 
additive mortality that can contribute to failure to sustain State or 
Tribal ungulate management objectives. We agree that ungulates are part 
of wolves' natural prey base and that wolves can play an important role 
in ecosystem function, as do other large predators. However, the 
anticipated levels of wolf removal under this NEP special rule would 
not result in disruption of ecosystem functions or meaningful impacts 
on other species that benefit from wolf presence. The most dramatic 
improvement of riparian vegetation after the return of wolves appeared 
to reduce elk browsing pressure is in Yellowstone National Park, where 
this rule does not apply and wolf control would not be allowed. 
However, the magnitude of cascading ecological effects from wolves is 
under some debate (Ripple and Beschta 2004, p. 755), and a number of 
biotic and abiotic factors are believed to affect woody browse 
conditions along with changes in ungulate behavior due to wolf presence 
(Smith, et al. 2003, pp. 338-339). Given observations in Yellowstone 
National Park and depending on a variety of conditions, removal of 
wolves to meet State or Tribal ungulate management objectives for a 
particular herd or population may result in increased browsing pressure 
in those localized areas. However, balancing management of ungulate 
populations with that of plant communities and habitats outside Federal 
lands is under the purview of State and Tribal natural resource 
agencies, not the Act.
    Issue 11--Some commenters were concerned that wolf control would 
prevent wolves from re-establishing in neighboring States that do not 
currently have wolf populations.
    Response 11--Given the levels and extent of anticipated control of 
wolves for unacceptable ungulate impacts, we do not expect wolf numbers 
to be reduced enough to cause a meaningful reduction in the probability 
of dispersers reaching other States.
    Issue 12--Some commenters believed that we improperly considered 
economic, political, or other factors in developing the proposed rule. 
Some believed we were influenced by special interests and State 
politicians, while others thought we favored environmental interests 
and the public outside the affected region. Several commenters believed 
that we neglected to address economic impacts to the tourist industry 
in the Yellowstone area and provided a citation on the economic 
benefits of wolves (Duffield, et al. 2006, p. 51). Others expressed 
that wolf predation on ungulates has negatively affected local 
economies by reducing clients for outfitters and guides and causing elk 
to move from feed grounds into areas where they cause damage and 
transmit disease to livestock.
    Response 12--The Act requires that the decision to list a species 
as threatened or endangered be based on the best available science, and 
this prohibits economic considerations when making that decision. 
However, no similar prohibition is applicable to the promulgation of a 
10(j) rule, and economic and other factors, including the effects on 
other wildlife populations, are appropriate for consideration. In 
promulgating this regulation, we have fully complied with the 
requirements of the Administrative Procedures Act. Moreover, we have 
addressed the various benefits and costs associated with this 
rulemaking as required by the Regulatory Flexibility Act and the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) (see Required 
Determinations section).

[[Page 4729]]

In particular, the expected level of wolf control resulting from this 
rule and the fact that this rule does not apply within Yellowstone 
National Park, where most of the public now goes to view wolves, will 
not affect wolf numbers and distribution in a manner that will 
significantly alter the opportunities for the public to observe and 
enjoy wolves in the wild. Therefore, we do not expect wolf-based 
tourism and dependent economies to be materially affected. We also 
acknowledge that in some situations this rule may result in economic 
benefits for guides and outfitters, and possibly other associated 
businesses, if wolf control results in higher ungulate populations that 
allow higher rates of hunter harvest.
    Issue 13--Some commenters believed that we are promoting public 
intolerance by allowing killing of wolves for natural predation and 
others questioned the basis of our statement that the revision to the 
NEP special rule may increase public tolerance and decrease illegal 
take. Others suggested that public education should be used to reduce 
anti-wolf sentiments instead of controlling wolves.
    Response 13--Because wolves are currently at population levels much 
higher than recovery goals, we believe it is appropriate to provide 
increased management flexibility to address conflicts between wolves 
and human uses. It is not unreasonable to assume that incentives for 
illegal take of wolves would be diminished by providing a legal and 
responsible mechanism for addressing those issues that are part of the 
basis for intolerance of wolves. However, because data are not 
available to support or disclaim this premise, we have removed this 
claim from the EA. State and Federal agencies, such as the National 
Park Service (NPS), and numerous conservation organizations continue to 
provide the public extensive information about wolf biology, ecology, 
and behavior.
    Issue 14--Some, including one peer reviewer, questioned how we 
would be able to determine that a killed wolf had been chasing or 
harassing a dog or stock animal, when such activities would not result 
in physical signs on the subject of the attack.
    Response 14--Making such a determination may be difficult in some 
cases, especially if the incident is not reported quickly because such 
evidence is generally temporary in nature. The requirement for 
reporting within 24 hours of take of the wolf will help ensure that the 
evidence is available upon investigation. If no actual biting, 
wounding, grasping, or killing has occurred, evidence must be available 
that a reasonable person would have believed that it was likely to 
occur at any moment. In such cases, we expect that the wolf carcass 
would be in very close proximity to the stock animal or dog or evidence 
that the stock animal or dog was chased, molested, or harassed by 
wolves. Evidence to indicate this activity may include photographs of 
stock animals or dogs, pickets, temporary livestock corrals or camps, 
the wolf carcass, and the surrounding area immediately following the 
taking of the wolf, and/or tracks of the stock animal or dog and wolf, 
hairs, damaged vegetation, or trampled ground. Since the 2005 special 
rule went into effect, 27 wolves have been killed while in the act of 
attacking livestock and, based on the evidence, the resulting 
investigations resulted in determinations that most of these wolves had 
been chasing, molesting, or harassing livestock. In two additional 
incidents where wolves were killed, one person was charged and 
convicted for violating the law and a second person is under 
investigation because the evidence did not indicate that wolves were in 
the act of attacking livestock. Thus, staff from State and Federal 
agencies involved with livestock depredations have developed expertise 
in determining wolf activities from field evidence and in most cases 
can make a reasonable determination whether that evidence indicates 
that a wolf was in the act of attacking the stock animal or dog.
    Issue 15--The Wildlife Services division of the U.S. Department of 
Agriculture's Animal and Plant Health Inspection Service indicated that 
language in the proposed rule implied that dogs are safe from wolf 
attack if they are near humans and provided information on some reports 
of wolves killing pet, herding, and guarding dogs with humans nearby 
(USDA 2007, p. 1).
    Response 15--Although wolf attacks on dogs in the presence of 
humans are extremely rare, we acknowledge that the possibility exists. 
Hence, the revision to the NEP special rule to provide individuals the 
additional flexibility to defend their dogs against wolf attacks. We 
have added the information on reported attacks in the preamble of this 
final rule.
    Issue 16--Several commenters were concerned that wolves would be 
killed when attracted to dogs used for hunting, or when protecting 
    Response 16--The rule prohibits killing of wolves with the use of 
intentional baiting, feeding, or deliberate attractants of wolves. For 
example, it would be unlawful to knowingly approach a wolf den or 
rendezvous site with a dog and then attempt to shoot those wolves. 
Anyone who uses dogs to deliberately attract wolves to kill them while 
in the guise of hunting would also be in violation of the law. On the 
other hand, the rule is intended to allow hunters to protect their 
hunting dogs from wolves that are in the act of attacking their dogs, 
if the hunter did not knowingly attract those wolves to the dogs.
    Issue 17--One peer reviewer thought we should clarify what take 
this NEP special rule would allow in national parks and asked for 
clarification of what the ``legally present'' requirement means.
    Response 17--This NEP special rule does not authorize any take of 
wolves on lands administered by the National Park Service. ``Legally 
present'' means that the person is (1) on their own property, (2) not 
trespassing and has the landowner's permission to bring their stock 
animal or dog on the property, or (3) abiding by regulations governing 
legal presence on public lands. As a means of clarification we have 
included this definition in this NEP special rule (see Changes From the 
Proposed Rule section).
    Issue 18--We received requests that goats be added to the 
definition of stock animals in the revised NEP special rule, because 
goats are used as pack animals in areas of the NRM where wolves could 
be a threat.
    Response 18--We revised the definition of stock animals to add 
goats to the list (see Changes From the Proposed Rule section).

C. Comments on Processes and Requirements

    Issue 19--Questions arose from commenters and peer reviewers 
regarding how approvals of proposals to control wolves could be 
scientifically based, as required by the NEP special rule, should State 
or Tribal management objectives for ungulate populations or herds have 
no biological basis. Some feared that management objectives would be 
deliberately inflated as an excuse to kill wolves. Others, including 
two peer reviewers, were concerned that management objectives may be 
set on carrying capacity for ungulates without consideration of the 
presence of wolves and thus unattainable with wolves in the system. 
Another peer reviewer stressed that ungulate populations at high 
densities relative to available resources will have low productivity 
regardless of wolf predation. This peer reviewer suggested that we 
provide a list of potential morphological indices of population vigor 
related to resource availability (such as antler size, hind leg length, 
and newborn calf weight) that

[[Page 4730]]

States and Tribes could consider in the development of management 
    Response 19--We agree that determining the scientific validity of a 
proposal to control wolves to restore ungulate herd or population 
management objectives would be difficult without a clear picture of the 
basis of those objectives. However, because the States and Tribes are 
experts in management of their ungulate populations, and management 
objectives may need to be determined by a number of complex factors and 
can change depending on conditions, we have elected not to direct 
specific factors the States and Tribes should consider in the 
establishment of their management objectives. Instead, we have added a 
requirement that the basis of the State or Tribal management objectives 
for the affected ungulate herd or population be described in the 
proposals for wolf control (see Changes From the Proposed Rule 
section). The NEP special rule also requires any such proposal for wolf 
control to include a description of the data indicating that the 
ungulate herd or population is below management objectives and why wolf 
control is a warranted solution to restore the herd or population to 
management objective levels. If management objectives are not being met 
because ungulate productivity is affected by its population density, 
the State or Tribe will still have to demonstrate in the proposal that 
the removal of wolves will help restore the ungulate herd or population 
to management objectives because wolves are a major factor in the 
decline of the herd or population. We believe that inclusion of such 
information in the proposal, combined with the required peer review and 
public comment processes, will enable us to make a sound science-based 
determination on whether the proposed wolf control is appropriate.
    Issue 20--We received requests to include a trigger in the rule to 
allow wolf control when calf/cow ratios in elk populations drop below 
30 calves per 100 cows.
    Response 20--As explained in Response 19, we will rely on the 
States and Tribes to provide in their proposals specific information 
indicating that ungulate herd or population objectives cannot be met. 
With respect to this comment, the proposal will need to demonstrate 
that a specific calf/cow ratio indicates that the herd or population 
will be unable to meet the established management objectives that 
wolves are a primary cause of the inability to meet management 
objectives, and that wolf control will resolve this problem.
    Issue 21--Some commenters wanted the definition of unacceptable 
impacts to include effects caused by wolves at key ungulate feeding 
areas or feed grounds. Others expressed disapproval that wolf control 
would be allowed for merely causing ungulate herds or populations to 
move from normal feeding areas.
    Response 21--As explained in Response 19, we do not specify factors 
that the State or Tribe must consider in the establishment of their 
ungulate management objectives. If the State or Tribe proposes to 
control wolves because they are affecting ungulates at key feeding 
areas, we will expect the proposal to include information that 
demonstrates that management objectives cannot be met because wolves 
are disrupting ungulate feeding patterns and behavior. The proposal 
should provide support linking wolf activities at the feeding areas 
with disruption of ungulate feeding, poor nutrition in ungulates, and 
effects to survival and recruitment of ungulates as a consequence.
    Issue 22--Some commenters thought that the Service, rather than the 
State or Tribe, should select peer reviewers or at a minimum have the 
option to reject peer reviews of proposals to control wolves for 
unacceptable ungulate impacts. Others recommended that we drop the 
requirement for peer and public review altogether so that wolf control 
actions would not be delayed when critically needed.
    Response 22--Independent peer review plays an important role in 
maximizing the quality, objectivity, utility, and integrity of the 
information upon which we will base our decisions. Peer review will 
help ensure that such information is the best scientific and commercial 
information available. Because the relationships between ungulate 
populations and wolves and other factors affecting such populations are 
highly complex, peer review from those with expertise in these 
relationships is even more critical in evaluating whether proposed wolf 
control is appropriate. Through their extensive level of experience 
with ungulate conservation, State and Tribal game and fish agencies 
have access to experts on predator-prey relationships in the academic 
and scientific communities. Assigning the responsibility to conduct 
peer reviews to each State and Tribe proposing to control wolves will 
result in a more efficient process.
    In this final NEP special rule, we clarify that the States and 
Tribes will be required to follow the OMB Final Information Quality 
Bulletin for Peer Review (70 FR 2664, January 14, 2005), which provides 
the professional standards that the Service uses in soliciting peer 
review from independent experts who have demonstrated expertise and 
specialized knowledge on the relevant issues. We also added details to 
the NEP special rule to clarify the requirements for peer review of 
wolf control proposals. Specifically, before submitting a wolf control 
proposal to us for approval, the State or Tribe will need to obtain 
five independent peer reviews of the proposal. To avoid a potential 
appearance of conflict of interest, those peer reviews must be obtained 
from experts other than staff of State, Tribal, or Federal agencies 
directly or indirectly involved in predator control or ungulate 
management in Montana, Idaho, or Wyoming. The State or Tribe also must 
explain in their proposal how the standards of the OMB peer review 
bulletin were considered and satisfied (see Changes From the Proposed 
Rule section).
    Wolf predation significantly impacting ungulate populations is 
known to occur only in combination with a number of other causes of 
population declines. The relationships between these other factors, 
wolves, and prey populations are very complex and rarely result in a 
sudden precipitous decline requiring response in less than the normal 
time to conduct peer reviews and a public comment process.
    Issue 23--A number of commenters objected to approval of any State 
or Tribal programmatic proposal for wolf control because they feared 
such an approach would allow the States or Tribes to rely on claims of 
broad-based ungulate impacts rather than providing evidence of 
localized impacts to a particular herd or population. Some commenters 
were also concerned that peer reviewers would not be able to predict 
the significance of the role of wolf predation in future ungulate 
impacts given the complex nature of interrelated factors affecting 
ungulate populations. Some also believed that programmatic proposals 
would limit the ability of the public to comment on issues related to 
local conditions and specific actions that would not be evident at the 
time of public review of the programmatic proposal. A commenter asked 
what the consequences would be if a control project was not consistent 
with an approved programmatic proposal. On the other hand, some 
promoted acceptance of programmatic proposals because such an approach 
would allow

[[Page 4731]]

States and Tribes to expeditiously address wolf impacts without delay 
associated with peer and public review on each individual control 
    Response 23--The NEP special rule does not discuss programmatic 
proposals per se. A programmatic proposal could be approved if it 
adequately addresses all the criteria required by the NEP special rule 
to show that the science supports the need for the proposed wolf 
control and has undergone all the procedural requirements for 
submission to the Service. We expect a programmatic proposal to clearly 
delineate specific conditions that would warrant wolf control for the 
period of time and geographic area covered by the proposal. 
Furthermore, before we could approve a programmatic proposal, we would 
have to be able to determine that control under such a proposal would 
not contribute to reducing the wolf population in the State below 20 
breeding pairs and 200 wolves.
    A programmatic proposal must undergo the same peer and public 
review processes as would a specific proposal. As stated above, a 
programmatic proposal would need to contain enough details to show that 
the required criteria for approving wolf control have been met. During 
review, peer reviewers and the public would have the opportunity to 
provide input on whether the details are sufficient or appropriate in 
such a programmatic proposal.
    If a specific control action is not consistent with the approved 
programmatic plan, it would be subject to enforcement of the Act's 
existing regulations governing NEPs of the gray wolf.
    As explained in our response to Issue 22, typical times for peer 
review and public comment processes are not expected to affect the 
timeliness of control actions.
    Issue 24--Some commenters wanted the regulations to include and 
describe an appeal process for the approval or disapproval of a 
proposal to control wolves for ungulate impacts. We also received 
requests that the regulations require specific means for public review 
of proposals, such as posting proposals on the Internet and providing 
60-day comment periods. Others asked how we would rescind an approval 
if a State or Tribe continued to control wolves if the State's 
population dropped below the special rule's safety margin of 20 
breeding pairs and 200 wolves.
    Response 24--We encourage States and Tribes to work closely with us 
while developing their proposals to ensure that all the required 
criteria in the regulations will be met. Based on expected coordination 
with the States and Tribes, we do not believe an appeal process for 
disapproved proposals is necessary. We believe that transparency of the 
peer review and public comment processes, the NEP special rule's 
criteria for an approvable proposal, and our standards for the use of 
the best scientific and commercial information available preclude the 
need for an appeal process. Furthermore, should we disapprove a 
proposal, we would explain the reasons for the disapproval, and the 
State or Tribe may revise the proposal and resubmit it for further 
    In the NEP special rule, we intend to allow for a transparent 
process for review of wolf control proposals by requiring the State or 
Tribe to implement peer reviews and a public comment period. The 
methods and processes for providing adequate and reasonable public 
review and input will be determined by the State or Tribe submitting a 
wolf control proposal.
    Monitoring of wolf populations (see Response 26) will provide a 
feedback loop that would inform the State or Tribe if the control 
actions are no longer appropriate or in danger of noncompliance with 
the regulations. If a State or Tribe continued to take wolves after the 
State's wolf population dropped below the rule's safety margin, the 
State or Tribe will be in violation of the law and subject to an 
investigation and further action by the Service's Division of Law 
    Issue 25--We received thousands of comments asking to prohibit 
aerial gunning as part of wolf control actions and some suggesting that 
the proposed revisions to the NEP special rule would violate the 
Airborne Hunting Act. Other commenters asked for prohibitions on a 
variety of methods, including but not limited to hunting, trapping, 
poisoning, and killing with motorized vehicles. One peer reviewer 
expressed a preference for hunting and trapping over aerial gunning and 
poisoning to gain more public acceptance of control measures. Some 
commenters objected to the use of trapping and poisoning on public 
property. Some commenters suggested using various forms of nonlethal 
control before resorting to killing wolves.
    Response 25--The States will likely use shooting from the ground 
and air as the primary method of control of wolves for ungulate 
impacts. These methods are considered the most efficient and humane of 
those available. Based on the experience and expertise of State agency 
staff, we believe the States should be allowed the flexibility to 
determine the appropriate methods of control within the confines of 
existing laws and regulations. This NEP special rule does not supersede 
or invalidate any other Federal, State, or Tribal laws and regulations, 
including the Airborne Hunting Act. All management activities under 
this NEP special rule must be conducted in compliance with all other 
applicable laws and regulations. Furthermore, if control methods result 
in take of wolves exceeding the level in an approved proposal under 
this NEP special rule, the control actions must cease and will be 
subject to enforcement under the Act.
    We and our partners in wolf recovery continue to investigate and 
implement a variety of nonlethal methods of wolf management. While 
preventative and nonlethal control methods can be useful in some 
situations, they are not consistently reliable, so lethal control 
remains a primary tool for managing wolves affecting ungulate 
populations, livestock, and domestic animals.
    Issue 26--Some commenters, including two peer reviewers, said that 
the rule should include a requirement for monitoring to determine 
effectiveness of wolf control actions and a process for adaptive 
management. Some questioned how monitoring by the States or Tribes 
would be funded or urged us to provide such funding.
    Response 26--In the NEP special rule's requirement for wolf control 
proposals to include a description of how ungulate population responses 
to wolf removal will be measured, we now specify that the proposal must 
describe how control actions will be adjusted to maintain their 
effectiveness. While the wolf is listed, Idaho and Montana receive 
Federal funding to conduct wolf population monitoring, and we provide 
staff to conduct monitoring in Wyoming. Wolf control for livestock 
depredation is reported informally on a weekly basis and officially in 
annual reports. The annual reports include comprehensive information on 
control actions, wolf population status, and analyses of the 
effectiveness of wolf control for livestock depredation. This reporting 
mechanism will be used for wolf control actions for unacceptable 
ungulate impacts under this rule. We expect the annual reports to 
include an evaluation of the effectiveness of wolf control and other 
measures in relieving unacceptable impacts to ungulate herds or 
populations just as is done for wolf control for livestock depredation. 
An adaptive management framework for wolf control for unacceptable 
ungulate impacts may entail slight modifications to the approved 
control actions. However, any necessary changes that

[[Page 4732]]

would increase level and duration of take of wolves or impacts to wolf 
populations that were not considered for the approval of the control 
actions will require submission of a new proposal and must comply with 
the rule's criteria and procedures for approval. The Idaho Department 
of Fish and Game's proposal for wolf control, submitted in 2006 (Idaho 
Department of Fish and Game 2006, pp. 20-21), provides an example of 
the type of information on proposed monitoring that should be included.
    Wolf populations in the NRM have been and will continue to be 
intensively monitored. This monitoring is conducted by the Service, 
NPS, Nez Perce Tribe, and the States of Idaho, Montana, and Wyoming and 
will help provide information on any effects to wolf populations from 
wolf control actions. Currently, Idaho and Montana receive Federal 
funding for wolf management and monitoring. Such funding is likely to 
continue at least until the wolf is delisted. While the wolf is listed, 
the Service provides funding and staff to conduct wolf management and 
monitoring in Wyoming outside the national parks. The NPS covers 
funding for monitoring in the national parks, but wolf control under 
this rule will not occur there.
    Issue 27--A couple of commenters claimed that the proposed rule is 
arbitrary and capricious because (1) the post-delisting wolf management 
plans, required for a State or Tribe to be eligible to use the NEP 
special rule, would be implemented only after delisting, yet we could 
approve wolf control before then, and (2) the Act provides no basis for 
allowing wolf control before delisting based on how a State or Tribe 
might manage wolves after delisting.
    Response 27--The requirement for approved post-delisting management 
plans for a State or Tribe to be eligible to apply the revised NEP 
special rule is not based on the specifics of wolf management after 
delisting, when the NEP special rule will no longer exist. Development 
of a wolf management plan demonstrates that the State or Tribe has 
undertaken a formal process that commits it to a management strategy 
for sustaining wolf recovery. This commitment assures that any proposal 
to remove wolves will be in alignment with long-term wolf conservation 
and not based solely on a goal to benefit ungulate populations. In 
addition, adoption of the wolf management plan will demonstrate that 
the wildlife agency has received the necessary local political and 
administrative support within the State or Tribe for implementing the 
plan and approved wolf control.
    Issue 28--We received requests, including from a State agency, to 
increase the required reporting period after a wolf is killed from 24 
to 72 hours to accommodate instances where the take occurred in remote 
    Response 28--In recognition of the need for a greater reporting 
time in certain situations, 50 CFR 17.84(n)(6) already allows for 
reasonable additional time for reporting if access to a site is 
limited. We believe this existing provision appropriately addresses the 
concern raised by the commenter and that no modification is needed.
    Issue 29--One commenter recommended that the NEP special rule 
specifically prohibit trapping of wolves in primary conservation areas 
for grizzly bears.
    Response 29--Only two grizzly bears have been accidently trapped 
since trapping wolves for monitoring and livestock control purposes 
began in 1986. The type of trap in one incident is now used by State or 
Federal agency staff only when grizzly bears are hibernating. In the 
other incident in Glacier National Park, a trapped bear was killed by 
another bear. Currrently, several measures are implemented to minimize 
accidental trapping and safety issues for nontarget species and agency 
staff (unintentional trapping of bears is much more dangerous to agency 
staff than it is to the bears). Some of these measures include the use 
of transmitters on traps to detect sprung traps, careful placement of 
traps, and use of less odorous bait to minimize attracting bears. If a 
bear is accidentally trapped, agency staff dart and release it. 
Therefore, wolf control authorized by this NEP special rule is highly 
unlikely to compromise grizzly bear conservation.
    Issue 30--Some commenters requested additional time for public 
comment. Some believed that we did not advertise the hearings and 
public comment periods sufficiently. Some objected that hearings were 
not held in major population areas such as Denver, Colorado, or 
Portland, Oregon.
    Response 30--We provided a total of 60 days in two separate 30-day 
periods for public comment. We announced information on the comment 
period and hearings in the Federal Register notice of the proposed 
rule, our national Web site, and regional Web sites in the two affected 
regions. We also provided legal notices of the comment period and 
hearings for publication in 11 major and local newspapers in Idaho, 
Montana, and Wyoming. We sent out press releases to print and broadcast 
media; members of Congress; relevant State, Tribal, Federal, and local 
agencies; and hundreds of interested parties in Idaho, Montana, 
Wyoming, Utah, Colorado, North Dakota, South Dakota, Nebraska, and 
Kansas. We also sent information on the opportunity for public comment 
to two major national environmental organizations that distributed the 
information to their membership, on their Web sites, and to other 
organizations that made similar efforts. Given that we received more 
than 260,000 comments from throughout the country, we believe 
sufficient notice and time was provided for widespread public comment. 
In selecting hearing locations, we believe that we achieved a balance 
between proximity to the most affected public in the three States where 
the rule would apply and the public's accessibility to the hearing 

D. Comments on Legal Compliance With Laws, Regulations, and Policies

    Issue 31--The proposed revised special rule is not in compliance 
with section 2 of the Act nor does it conform to the purposes of 
section 10(j) because it does not further the conservation of the 
species. The proposed revisions are tantamount to delisting and in 
violation of Section 4 of the Act by allowing take as if the species 
was not listed.
    Response 31--The regulations under the Act relating to 
establishment of experimental populations specifically recognize the 
creation of special rules containing both prohibitions and exceptions 
for those populations (50 CFR 17.82). Under section 10(j), such 
exceptions are intended to allow management practices to address 
potential negative impacts or concerns from reintroductions. The 10(j) 
special regulations of 1994 and 2005 for the NEP of the gray wolf in 
the NRM include provisions for managing wolf populations impacting 
livestock and ungulate populations. Such provisions are necessary for 
the continued enhancement and conservation of wolf populations because 
they foster local tolerance of introduced wolves. However, these 
revisions do not alter the protected status of the gray wolf in the NRM 
provided under section 4 of the Act. The reintroduction of the gray 
wolf into Central Idaho, Southwestern Montana, and Yellowstone National 
Park under the 10(j) provisions clearly furthered the conservation of 
the species. Since 1995, when the reintroductions first occurred, wolf 
populations expanded in size and distribution and reached the minimum 
recovery goals in 2000 and have exceeded those goals every year since 
then. As described above, our

[[Page 4733]]

modifications to the provisions of the 2005 special rule do not 
compromise the continued conservation of these populations in this 
remarkable recovery success story.
    Issue 32--One commenter thought that we should prepare an 
environmental impact statement rather than an EA to comply with the 
National Environmental Policy Act (NEPA) because the rule would allow 
the killing of nearly 1,000 wolves, constituting a major Federal action 
significantly affecting the quality of the human environment.
    Response 32--As a result of the analysis in the EA, we made a 
finding of no significant impact because we concluded, among other 
reasons, that the likely amount of take of wolves that the rule would 
authorize would be relatively low and would not compromise recovery of 
the NRM wolf population. Based on the current available information 
where wolves may be causing unacceptable impacts to ungulate 
populations, it is our expectation that the total number of wolves 
taken would be well below 1,000.

E. General Comments on the Proposed Rule

    Issue 33--The State of Montana supported all aspects of the 
revisions to the 10(j) special rule, but did not want efforts to 
finalize it to take priority over, and thus delay, finalizing the 
delisting rule.
    Response 33--The Service remains committed to finalizing both the 
10(j) rule and its decision on the proposed delisting rule in early 
2008. The revised 10(j) special rule is intended to provide flexibility 
for wolf management in the NEP areas (including in Montana) in case the 
final determination on the delisting is delayed or concludes the wolf 
should remain listed.

F. Comments Not Germane to the Revisions of the Special Regulations

    Some comments went beyond the scope of this rulemaking, or beyond 
the authority of the Service or the Act. Since these issues do not 
relate to the action we proposed, they are not addressed here. These 
comments included support or opposition for future delisting, 
assertions that wolf reintroduction was illegal and/or usurped States' 
rights, and that the type of wolf that currently lives in Montana, 
Idaho, and Wyoming is a nonnative wolf. Many of these types of comments 
were discussed in the reclassification rule (68 FR 15804, April 1, 
2003). We also received comments expressing support for, and opposition 
to wolf recovery efforts and the proposal (or parts of it) without 
further explanation.

Changes From the Proposed Rule

    As a result of comments and additional information received during 
the comment period, and additional analysis, we made several changes to 
the special rule as proposed on July 6, 2007 (72 FR 36942). We describe 
the specific changes below. Discussion of the basis for these changes 
are in our responses to the relevant comments where indicated below.
    1. Proposed--Among the criteria States or Tribes would be required 
to address in a proposal to control wolves for unacceptable impacts to 
ungulate herds or populations was ``Identifies possible remedies or 
conservation measures in addition to wolf removal.''
    1. Final--The requirement is changed to ``Demonstrates that 
attempts were and are being made to address other identified major 
causes of ungulate herd or population declines or the State or Tribal 
government commitment to implement possible remedies or conservation 
measures in addition to wolf removal; * * *.'' See Response 7 in 
Summary of Comments and Recommendations.
    2. Proposed--Defined ``stock animal'' as a ``horse, mule, donkey, 
or llama used to transport people or their possessions.''
    2. Final--The definition of ``stock animal'' is changed to ``a 
horse, mule, donkey, llama, or goat used to transport people or their 
possessions.'' See Response 18 in Summary of Comments and 
    3. Proposed--Required States and Tribes to describe data showing 
that ungulate herds or populations are below management objectives, but 
did not require a description of the basis of the management 
    3. Final--In proposals for wolf control to address unacceptable 
ungulate impacts, in addition to other criteria States and Tribes must 
meet, the basis of the ungulate management objectives must be 
described. See Response 19 in Summary of Comments and Recommendations.
    4. Proposed--Required States and Tribes to conduct peer review of 
wolf control proposals before submission to the Service for approval, 
but did not provide details of peer review requirements.
    4. Final--The rule now specifies that the State or Tribe must 
conduct the peer review process in conformance with the OMB's Final 
Information Quality Bulletin for Peer Review and obtain five peer 
reviews from experts on the related issues, other than those employed 
by State, Tribal, or Federal agencies directly or indirectly involved 
in predator control or ungulate management. See Response 22 in Summary 
of Comments and Recommendations.
    5. Proposed--Required State or Tribal proposals to control wolves 
for unacceptable ungulate impacts to include a description of how 
ungulate population responses to wolf control would be measured, but 
did not address adaptive management.
    5. Final--The rule now includes a requirement that the proposal 
describe how control actions will be adjusted for effectiveness. See 
Response 26 in Summary of Comments and Recommendations.
    6. Proposed--Referred to the individuals to whom the take 
provisions in this rule would apply as ``citizens''.
    6. Final--To be consistent with the language in the Act, the rule 
now substitutes the word ``person'' for ``citizen''.
    7. Proposed--Specified that individuals must be ``legally present'' 
on private or public land in order to lethally take wolves in defense 
of their stock animals and dogs, but did not provide a description of 
what we meant by ``legally present''.
    7. Final--As a means of clarification this rule now includes a 
definition of when a person is ``Legally present''. See Response 17 in 
Summary of Comments and Recommendations.

Required Determinations

    Regulatory Planning and Review--In accordance with the criteria in 
Executive Order 12866, this rule is a significant regulatory action and 
subject to Office of Management and Budget (OMB) review. An economic 
analysis is not required because this rule will result in only minor 
and positive economic effects on a small percentage of people in Idaho, 
Montana, and Wyoming.
    (a) This regulation will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A brief assessment to 
clarify the costs and benefits associated with this rule follows:
    Costs Incurred--Under this rule, management of wolves by States or 
Tribes with wolf management plans is voluntary. Therefore, associated 
costs to States and Tribes for control of wolves causing unacceptable 
impacts to ungulate herds or populations are discretionary. While we do 
not quantify expected expenditures, these costs may consist of staff 
time and salary as well as transportation and equipment

[[Page 4734]]

necessary to control wolves. Costs to the Service would include those 
associated with staff time and salary coordinating with States and 
Tribes during development of wolf control proposals and review and 
determination of approval of proposals.
    We have funded State and Tribal wolf monitoring, research, and 
management efforts for gray wolves in Montana, Idaho, and Wyoming, and 
intend to continue to do so as long as wolves are listed in these 
States. For the past several years Congress has specifically provided 
funding for wolf management to Montana, Idaho, and Wyoming, and the Nez 
Perce. In addition, Federal grant programs are available that fund or 
partially fund wildlife management programs by the States and Tribes.
    Benefits Accrued--The objectives of the proposed rule change are 
(1) to provide a means for States and Tribes with Service-approved wolf 
management plans to address the unacceptable impacts of a recovered 
wolf population to ungulate populations and herds, and (2) to allow 
persons in the boundaries of the NEP areas within any States or Tribal 
lands that has a Service-approved wolf management plan other than on 
lands administered by NPS to take wolves that are in the act of 
attacking their stock animals or dogs. Allowing wolf removal in 
response to unacceptable impacts will help maintain ungulate 
populations or herds at or above State or Tribal objectives. As a 
result, hunters and associated businesses, including guides, 
outfitters, and the hunting retail industry, may benefit from increased 
hunting opportunities. Increased hunting opportunities provide States 
with additional revenue which is used for wildlife management and 
habitat restoration, protection, and enhancement.
    Allowing take of wolves in the act of attacking stock animals or 
dogs would have a beneficial economic impact to the affected 
individuals by allowing them to protect such private property, as well 
as avoid the need for persons to unnecessarily replace and retrain 
these animals.
    (b) This regulation does not create inconsistencies with other 
agencies' actions. Agency responsibilities for section 7 of the Act are 
the same for this rule as the previous NEP special rules. This rule 
reflects the continuing success in recovering the gray wolf through 
long-standing cooperative and complementary programs by a number of 
Federal, State, and Tribal agencies. Implementation of Service-approved 
State or Tribal wolf management plans supports these existing 
    (c) This rule will not alter the budgetary effects or entitlements, 
grants, user fees, or loan programs, or the rights and obligations of 
their recipients, because we do not foresee, as a result of this rule, 
any new impacts or restrictions to existing human uses of lands in 
Idaho, Montana, Wyoming, or any Tribal reservations that remain under 
the 1994 NEP special rules.
    (d) OMB has determined that this rule could raise novel legal or 
policy issues.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq., as 
amended by the SBREFA of 1996), 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 effects of the rule on small 
entities (i.e., small businesses, small organizations, and small 
government jurisdictions). However, no regulatory flexibility analysis 
is required if the head of the agency certifies the rule will not have 
a significant economic impact on a substantial number of small 
entities. The 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. The SBREFA also amended the 
Regulatory Flexibility Act to require a certification statement. Based 
on the information that is available to us at this time, we certify 
that this regulation will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    The revisions in this rule relax some of the previous restrictions 
on take of wolves and do not increase restrictions. For a discussion of 
how small entities may benefit from this increased flexibility see the 
Benefits Accrued section in the Required Determinations section above. 
One study indicated that the return of wolves to the NRM infused 
approximately $35.5 million to local economies from increased tourism 
to observe wolves in the wild (Duffield, et al. 2006, p.51). The 
expected level of wolf control resulting from this rule and the fact 
that this rule does not apply within Yellowstone National Park, where 
most of the public goes to view wolves, will not affect wolf numbers 
and distribution in a manner that would significantly alter the 
opportunities for the public to observe and enjoy wolves in the wild. 
Therefore, local small entities benefiting from tourism associated with 
wolf-viewing are not likely to see decreases in business as the result 
of the revisions to this rule.

Small Business Regulatory Enforcement Fairness Act

    This regulation is not a major rule under 5 U.S.C. 801, et seq., 
    (a) This regulation will not have an annual effect on the economy 
of $100 million or more and is fully expected to have no significant 
economic impacts. The proposed regulation further reduces the effect 
that wolves will have on a few persons by increasing the opportunity 
for them to protect their stock animals and dogs. Since there are so 
few small businesses impacted by this regulation, the combined economic 
effects are minimal.
    (b) This regulation will not cause a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions and will impose no 
additional regulatory restraints in addition to those already in 
    (c) This regulation will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of United States-based enterprises to compete with foreign-
based enterprises. Based on the analysis of identified factors, we have 
determined that no individual industries within the United States will 
be significantly affected and that no changes in the demography of 
populations are anticipated. The intent of this special rule is to 
facilitate and continue existing commercial activities while providing 
for the conservation of species by better addressing the concerns of 
affected landowners and the impacts of a recovered wolf population.

Unfunded Mandates Reform Act

    This rule defines a process for voluntary and cooperative transfer 
of management responsibilities for a listed species back to the States. 
Therefore, in accordance with the Unfunded Mandates Reform Act (2 
U.S.C. 1501, et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year; that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. This rule is not 
expected to have any significant economic impacts nor will it impose 
any unfunded mandates on other Federal, State, or local government 
agencies to carry out specific activities.

[[Page 4735]]

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, this rule will not have 
significant implications concerning taking of private property by the 
Federal Government. This rule will substantially advance a legitimate 
government interest (conservation and recovery of listed species) and 
will not present a bar to all reasonable and expected beneficial use of 
private property. Because this proposed rule change pertains only to 
the relaxation of restrictions on lethal removal of wolves, it will not 
result in any takings of private property.

Federalism (Executive Order 13132)

    This rule maintains the existing relationship between the States 
and the Federal Government. The State of Wyoming requested that we 
undertake this rulemaking in order to assist the States in reducing 
conflicts with local landowners and returning wolf management to the 
States or Tribes. We have cooperated with the States in preparation of 
this rule. Maintaining the recovery goals for these wolves will 
contribute to their eventual delisting and their return to State 
management. It is a voluntary decision whether to undertake Programs 
and actions to take wolves under this rule. This rule will not have 
substantial direct effects on the States, on the relationship between 
the States and the Federal Government, or on the distribution of power 
and responsibilities among the various levels of government. 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. 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 (Executive Order 12988)

    In accordance with Executive Order 12988, the Department of the 
Interior has determined that this rule does not unduly burden the 
judicial system and meets the applicable standards provided in sections 
3(a) and 3(b)(2) of the order.

Paperwork Reduction Act

    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. This rule does not contain any new collections of 
information that would require us to obtain OMB approval. 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. This 
rule includes a requirement that a State or Tribe requesting approval 
to control wolves for unacceptable ungulate impacts submit a proposal 
to us. However, as these proposals will only be submitted by States or 
Tribes with Service-approved wolf management plans, we do not 
anticipate that it will affect 10 or more persons, as defined above. 
Therefore, OMB approval and a control number are not needed for 
information collections associated with these proposals. Existing 
information collections already approved under the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq. include permit application forms, assigned 
OMB control number 1018-0094, and the notification requirements in our 
experimental population regulations under 50 CFR 17.84, assigned OMB 
control number 1018-0095.

National Environmental Policy Act (NEPA)

    We have prepared an environmental analysis and finding of no 
significant impact, as defined under the authority of the NEPA of 1969. 
These documents are available from the Office of the Western Gray Wolf 
Recovery Coordinator (see ADDRESSES section) or from our Web site at 

Government-to-Government Relationship With Tribes (Executive Order 

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have coordinated with affected Tribes within the experimental 
population areas of Idaho, Montana, and Wyoming on this rule. We have 
fully considered all comments on the proposed special regulations that 
were submitted by Tribes and Tribal members during the public comment 
period and have attempted to address those concerns, new data, and new 
information where appropriate.

Energy Supply, Distribution or Use (Executive Order 13211)

    On May 18, 2001, the President issued Executive Order 13211 
requiring agencies to prepare Statements of Energy Effects when 
undertaking certain actions that significantly affect energy supply, 
distribution, and use. This rule is not expected to significantly 
affect energy supplies, distribution, or use. Therefore, this action is 
not a significant energy action and no Statement of Energy Effects is 

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from our Helena office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

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:

    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.  17.84 by revising paragraph (n) as follows:
a. In paragraph (n)(3), revise the term ``unacceptable impact'' and, in 
alphabetical order, add the terms ``legally present,'' ``stock 
animal,'' and ``ungulate population or herd,'' to read as set forth 
below; and

[[Page 4736]]

b. In paragraph (n)(4), revise the first sentence following the heading 
and paragraph (n)(4)(v) and add paragraph (n)(4)(xiii) to read as set 
forth below:

Sec.  17.84  Special rules--vertebrates.

* * * * *
    (n) * * *
    (3) * * *
* * * * *
    Legally present--A Person is legally present when (1) on their own 
property, (2) not trespassing and has the landowner's permission to 
bring their stock animal or dog on the property, or (3) abiding by 
regulations governing legal presence on public lands.
* * * * *
    Stock animal--A horse, mule, donkey, llama, or goat used to 
transport people or their possessions.
    Unacceptable impact--Impact to ungulate population or herd where a 
State or Tribe has determined that wolves are one of the major causes 
of the population or herd not meeting established State or Tribal 
management goals.
    Ungulate population or herd--An assemblage of wild ungulates living 
in a given area.
* * * * *
    (4) Allowable forms of take of gray wolves. The following 
activities, only in the specific circumstances described under this 
paragraph (n)(4), are allowed: Opportunistic harassment; intentional 
harassment; take on private land; take on public land except land 
administered by National Parks; take in response to impacts on wild 
ungulate populations; take in defense of human life; take to protect 
human safety; take by designated agents to remove problem wolves; 
incidental take; take under permits; take per authorizations for 
employees of designated agents; take for research purposes; and take to 
protect stock animals and dogs. * * *
* * * * *
    (v) Take in response to wild ungulate impacts. If wolf predation is 
having an unacceptable impact on wild ungulate populations (deer, elk, 
moose, bighorn sheep, mountain goats, antelope, or bison) as determined 
by the respective State or Tribe, a State or Tribe may lethally remove 
the wolves in question.
    (A) In order for this provision to apply, the State or Tribes must 
prepare a science-based document that:
    (1) Describes the basis of ungulate population or herd management 
objectives, what data indicate that the ungulate population or herd is 
below management objectives, what data indicate that wolves are a major 
cause of the unacceptable impact to the ungulate population or herd, 
why wolf removal is a warranted solution to help restore the ungulate 
population or herd to State or Tribal management objectives, the level 
and duration of wolf removal being proposed, and how ungulate 
population or herd response to wolf removal will be measured and 
control actions adjusted for effectiveness;
    (2) Demonstrates that attempts were and are being made to address 
other identified major causes of ungulate herd or population declines 
or the State or Tribe commits to implement possible remedies or 
conservation measures in addition to wolf removal; and
    (3) Provides an opportunity for peer review and public comment on 
their proposal prior to submitting it to the Service for written 
concurrence. The State or Tribe must:
    (i) Conduct the peer review process in conformance with the Office 
of Management and Budget's Final Information Quality Bulletin for Peer 
Review (70 FR 2664, January 14, 2005) and include in their proposal an 
explanation of how the bulletin's standards were considered and 
satisfied; and
    (ii) Obtain at least five independent peer reviews from individuals 
with relevant expertise other than staff employed by a State, Tribal, 
or Federal agency directly or indirectly involved with predator control 
or ungulate management in Idaho, Montana, or Wyoming.
    (B) Before we authorize lethal removal, we must determine that an 
unacceptable impact to wild ungulate populations or herds has occurred. 
We also must determine that the proposed lethal removal is science-
based, will not contribute to reducing the wolf population in the State 
below 20 breeding pairs and 200 wolves, and will not impede wolf 
* * * * *
    (xiii) Take to protect stock animals and dogs. Any person legally 
present on private or public land, except land administered by the 
National Park Service, may immediately take a wolf that is in the act 
of attacking the individual's stock animal or dog, provided that there 
is no evidence of intentional baiting, feeding, or deliberate 
attractants of wolves. The person must be able to provide evidence of 
stock animals or dogs recently (less than 24 hours) wounded, harassed, 
molested, or killed by wolves, and we or our designated agents must be 
able to confirm that the stock animals or dogs were wounded, harassed, 
molested, or killed by wolves. To preserve evidence that the take of a 
wolf was conducted according to this rule, the person must not disturb 
the carcass and the area surrounding it. The take of any wolf without 
such evidence of a direct and immediate threat may be referred to the 
appropriate authorities for prosecution.
* * * * *

    Dated: December 27, 2007.
Kenneth Stansell,
Acting Director,
U.S. Fish and Wildlife Service.
[FR Doc. 08-334 Filed 1-24-08; 8:45 am]