[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Rules and Regulations]
[Pages 25593-25611]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10467]
[[Page 25593]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2009-0077; 92220-1113-0000; ABC Code: C3]
RIN 1018-AW63
Endangered and Threatened Wildlife and Plants; Establishment of a
Nonessential Experimental Population of Sonoran Pronghorn in
Southwestern Arizona
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
reestablishing the Sonoran pronghorn, a federally listed endangered
mammal, in its historical habitat in King Valley, Kofa National
Wildlife Refuge, in Yuma County, and the Barry M. Goldwater Range--
East, Maricopa County, in southwestern Arizona. We are reestablishing
the Sonoran pronghorn under section 10(j) of the Endangered Species Act
of 1973, as amended, and classify that reestablished population as a
nonessential experimental population (NEP). The NEP is located in
southwestern Arizona in an area north of Interstate 8 and south of
Interstate 10, bounded by the Colorado River on the west and Interstate
10 on the east; and an area south of Interstate 8, bounded by Highway
85 on the west, Interstates 10 and 19 on the east, and the United
States-Mexico border on the south.
This action is one of the recovery actions that the Service,
Federal and State agencies, and other partners are conducting
throughout the historical range of the species. This final rule
establishes the NEP and provides for limited allowable legal taking of
Sonoran pronghorn within the defined NEP area. An Environmental
Assessment and Finding of No Significant Impact have been prepared for
this action (see ADDRESSES section below).
DATES: The effective date of this rule is June 6, 2011.
ADDRESSES: This final rule, along with the public comments,
Environmental Assessment (EA) and Finding of No Significant Impact
(FONSI), is available on the Internet at http://www.regulations.gov and
http://www.fws.gov/southwest/es/arizona/. Supporting documentation is
also available for public inspection, by appointment, during normal
business hours, at the U.S. Fish and Wildlife Service's Arizona
Ecological Services Office at 2321 W. Royal Palm Road, Suite 103,
Phoenix, AZ 85021.
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor,
Arizona Ecological Services Office, 2321 W. Royal Palm Road, Suite 103,
Phoenix, AZ 85021 (telephone 602-242-0210, facsimile 602-242-2513). If
you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
this final rule establishing a Sonoran pronghorn nonessential
experimental population (NEP). For more information on the Sonoran
pronghorn, refer to the February 4, 2010, proposed rule (75 FR 5732)
and the 1998 Revised Sonoran Pronghorn Recovery Plan (Service 1998:
http://ecos.fws.gov/docs/recovery_plan/981203.pdf) and its amendments
(Service 2002: http://ecos.fws.gov/docs/recovery_plan/031126.pdf).
Regulatory Background
We listed the Sonoran pronghorn subspecies (Antilocapra americana
sonoriensis) as endangered throughout its range on March 11, 1967 (32
FR 4001), under the Endangered Species Preservation Act of October 15,
1966, without critical habitat. This subspecies was included as an
endangered species when the Endangered Species Act was signed into law
in 1973 (Act; 16 U.S.C. 1531 et seq.). The Act provides that species
listed as endangered are afforded protection primarily through the
prohibitions of section 9 and the requirements of section 7. Section 9
of the Act, among other things, prohibits the take of endangered
wildlife. ``Take'' is defined by the Act as to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or attempt to
engage in any such conduct. Service regulations (50 CFR 17.31)
generally extend the prohibitions of take to threatened wildlife.
Section 7 of the Act outlines the procedures for Federal interagency
cooperation to conserve federally listed species and protect designated
critical habitat. It mandates that all Federal agencies use their
existing authorities to further the purposes of the Act by carrying out
programs for the conservation of listed species. It also states that
Federal agencies will, in consultation with the Service, ensure that
any action they authorize, fund, or carry out is not likely to
jeopardize the continued existence of a listed species or result in the
destruction or adverse modification of designated critical habitat.
Section 7 of the Act does not affect activities undertaken on private
or other non-Federal land unless they are authorized, funded, or
carried out by a Federal agency.
Under section 10(j) of the Act, the Secretary of the Department of
the Interior can reestablish populations outside the species' current
range and designate them as ``experimental.'' With the experimental
population designation, the relevant population is treated as
threatened for purposes of section 9 of the Act, regardless of the
species' designation elsewhere in its range. Threatened designation
allows us discretion in devising management programs and special
regulations for such a population. Section 10(j) of the Act allows us
to adopt whatever regulations are necessary and advisable to provide
for the conservation of a NEP. In these situations, the general
regulations that extend most section 9 prohibitions to threatened
species do not apply to that species, and the 10(j) rule contains the
prohibitions and exemptions necessary and appropriate to conserve that
species.
For the purposes of section 7 of the Act, we treat an NEP as a
threatened species when the NEP is located within a National Wildlife
Refuge or unit of the National Park Service, and section 7(a)(1) and
the consultation requirements of section 7(a)(2) of the Act apply.
Section 7(a)(1) requires all Federal agencies to use their authorities
to carry out programs for the conservation of listed species. Section
7(a)(2) requires that Federal agencies, in consultation with the
Service, ensure that any action authorized, funded, or carried out is
not likely to jeopardize the continued existence of a listed species.
When NEPs are located outside a National Wildlife Refuge or National
Park Service unit, then for the purposes of section 7, we treat the
population as proposed for listing, and only two provisions of section
7 apply--section 7(a)(1) and section 7(a)(4).
In these instances, NEPs provide additional flexibility because
Federal agencies are not required to consult with us under section
7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather
than consult) with the Service on actions that are likely to jeopardize
the continued existence of a species proposed to be listed. The results
of a conference are in the form of conservation recommendations that
are optional as the agencies carry out, fund, or authorize activities.
Because the NEP is, by definition, not essential to the continued
existence of the species
[[Page 25594]]
(see below) then the effects of proposed actions on the NEP will
generally not rise to the level of jeopardizing the continued existence
of the species. As a result, a formal conference will likely never be
required for Sonoran pronghorn established within the NEP area.
Nonetheless, some agencies (e.g., Bureau of Land Management (BLM))
voluntarily confer with the Service on actions that may affect a
proposed species. Section 10(j)(2)(c)(ii) precludes the designation of
critical habitat for nonessential populations. Activities that are not
carried out, funded, or authorized by Federal agencies are not subject
to provisions or requirements in section 7.
Based on the best scientific and commercial data available, we must
determine whether the experimental population is essential or
nonessential to the continued existence of the species. The regulations
(50 CFR 17.80(b)) state that an experimental population is considered
essential if its loss would be likely to appreciably reduce the
likelihood of survival of that species in the wild. All other
populations are considered nonessential. We have determined that this
experimental population is not essential to the continued existence of
the species in the wild (see Status of Reestablished Populations
section below). Therefore, the Service is designating a nonessential
experimental population for the species in this area.
Sonoran pronghorn used to establish the experimental population
will come from a captive-rearing pen on Cabeza Prieta National Wildlife
Refuge (NWR), as long as appropriate permits are issued in accordance
with our regulations (50 CFR 17.22) prior to the animals' removal. The
donor population is a captive-bred population derived primarily from
wild stock at Cabeza Prieta NWR and from a wild Sonoran pronghorn
population in northwestern Sonora, Mexico. The purpose of the captive
population is to provide stock for augmenting existing U.S. and Mexican
populations of Sonoran pronghorn, as well as supplying founder animals
for establishment of an additional U.S. herd(s), in accordance with
recovery actions 2.1-2.4 of the Sonoran Pronghorn Recovery Plan
(Service 2002, pp. 47-48). The proposed population establishment will
involve two phases: (1) Construction and operation of a captive-
breeding pen at Kofa NWR, with subsequent releases to establish a new
herd; and (2) relocation of excess Sonoran pronghorn from the existing
breeding pen at Cabeza Prieta NWR to the eastern portion of the BMGR-E,
east of Highway 85 and south of Interstate 8, with the intent of
establishing another herd.
Biological Information
The Sonoran pronghorn was first described by Goldman (1945, pp. 3-
4) and is small in terms of cranial measurements compared to the
measurements of other subspecies of pronghorn (Nowak and Paradiso 1971,
p. 857). Historically, the Sonoran pronghorn ranged in the United
States from approximately the Santa Cruz River, Arizona, in the east,
to the Gila Bend and Kofa Mountains, Arizona, to the north, and to
Imperial Valley, California, to the west (Service 1998, pp. 4-6). In
northwestern Sonora, Mexico, the subspecies is thought to have occurred
historically as far south as Bahia Kino and east to Santa Ana and
Nogales. In Baja California, Mexico, the subspecies occurred in the
northeast from the United States border south to the vicinity of Punta
Estrella (Phelps and Webb 1981, pp. 20-21; Service 2002, Fig. 2).
Currently, three populations of the Sonoran pronghorn are extant: (1) A
U.S. population in southwestern Arizona, south of Interstate 8, west of
Highway 85, and east of the Copper and Cabeza Prieta mountains (80-90
wild pronghorn); (2) a population in the El Pinacate Region of
northwestern Sonora (101 pronghorn); and (3) a population south and
east of Mexico Highway 8 and west and north of Caborca, Sonora (381
pronghorn). The three populations are geographically isolated due to
barriers such as roads and fences (Service 2002, pp. 4-10, Fig. 1). The
current range of the Sonoran pronghorn in the United States is defined
by the boundaries described in number (1) above. Section 10(j)(2)(A) of
the Act states that, ``The Secretary may authorize the release (and the
related transportation) of any population (including eggs, propagules,
or individuals) of an endangered species or a threatened species
outside the current range of such species * * *'' Consistent with years
of survey data, we are confident that no Sonoran pronghorn population
occurs outside of the current range (Phelps 1981, pp. 23-24; Service
2002, pp. 16 and 47).
Threats to the Sonoran pronghorn include:
(1) Highways, fences, railroads, developed areas, and irrigation
canals that block access to essential forage or water resources;
(2) a variety of human activities that disturb pronghorn or degrade
habitat, including livestock grazing in the United States and Mexico;
military activities; recreation; poaching and hunting; clearing of
desert scrub and planting of buffelgrass (Pennisetum ciliare),
particularly in Sonora; gold mining southeast of Sonoyta, Sonora;
dewatering and development along the Gila River and R[iacute]o Sonoyta;
and high levels of undocumented immigration and drug trafficking across
the international border, and associated law enforcement response in
the United States;
(3) wildfire, fueled by nonnative perennial and ephemeral plants
that have increased fine fuels and allowed fire to become a much more
frequent event in the Sonoran Desert;
(4) drought and associated limited food and water; and
(5) small population size and random changes in demographics.
Populations at low levels may experience random variations in sex
ratios, age distributions, and birth and death rates among individuals,
which can cause fluctuations in population size and possibly extinction
(Service 2002, pp. 14-35; Primack 2002, pp. 196-197). In very sparse
populations, males may have trouble finding females, causing an unequal
sex-ratio, which may lead to a reduction in productivity (Primack 2002,
pp. 310-311). In 2002, a severe drought was the primary cause of a
major die off of Sonoran pronghorn. The U.S. population declined in
2002 by 83 percent, to 21 animals (Bright and Hervert 2005, p. 46). The
Mexican populations declined at the same time, but not to the same
degree. The population southeast of Highway 8 declined by 18 percent,
while the El Pinacate population declined by 26 percent. The
differences between the rates of decline north and south of the border
may be due to high levels of human disturbance on the U.S. side, due
primarily to heightened levels of illegal immigration, smuggling, and
law enforcement response (Service 2008, p. 55).
Recovery Efforts
Restoring an endangered or threatened species to the point where it
is recovered is a primary goal of the endangered species program. Thus,
in 1982 we published the Sonoran Pronghorn Recovery Plan (Plan)
(Service 1982), which was produced by a Recovery Team comprised of
representatives from the Arizona Game and Fish Department (AGFD),
Cabeza Prieta NWR, BLM, and Organ Pipe Cactus National Monument
(OPCNM). The Plan was subsequently revised in 1994, 1998, and 2002.
Major recovery actions include:
(1) Enhance present populations of Sonoran pronghorn by providing
supplemental forage and/or water;
[[Page 25595]]
(2) Determine habitat needs and protect present range;
(3) Investigate and address potential barriers to expansion of
presently used range, and investigate, evaluate, and prioritize present
and potential future reintroduction sites within the historical range;
(4) Establish and monitor a new, separate herd(s) to guard against
catastrophes decimating the core population;
(5) Continue monitoring populations and maintain a protocol for a
repeatable and comparable survey techniques; and
(6) Examine additional specimen evidence to assist in verification
of taxonomic status (Service 1998, pp. iii-iv).
The 2002 Supplement did not include delisting criteria; however,
eight short-term recovery actions were identified as necessary to
downlist the species to threatened. The supplement goes on to say that
accomplishing these actions would provide the information necessary to
determine delisting criteria. One of the short-term recovery actions
was ``evaluating potential transplant locations, establishing
methodology and protocols, developing interagency agreements (including
with Mexico as required), acquiring funding, and initiating
reestablishment projects'' (Service 2002, p. 38).
After the catastrophic die off of Sonoran pronghorn in 2002, the
Service and its partners embarked on a number of aggressive recovery
actions to ensure the species' continued existence and to begin to
rebuild populations. The cornerstone of these actions was a semi
captive breeding facility, constructed in Childs Valley of Cabeza
Prieta NWR in 2003, and stocked with wild Sonoran pronghorn in 2004. In
2009, as of May, 69 Sonoran pronghorn resided in the pen. To date, 44
Sonoran pronghorn have been released into the wild population. The goal
of the facility is to produce at least 20 fawns each year for release
to the current U.S. population, to newly established population(s) in
the United States, and to augment Mexican populations.
A number of other projects are under way to increase availability
of green forage and water during dry periods and seasons, offsetting to
some extent the effects of drought and barriers that prevent Sonoran
pronghorn from accessing greenbelts and water, such as the Gila River
and R[iacute]o Sonoyta. Nine emergency water sources (six on Cabeza
Prieta NWR, one on OPCNM, and two on BMGR-West) have been constructed
in recent years throughout the range of the U.S. population. Four
forage enhancement plots, each consisting of a well, pump, pipelines,
and irrigation lines, have been developed to irrigate the desert and
produce forage for pronghorn. Another plot is nearing completion, and
two additional plots will be installed over the next 5 years. These
crucial projects, intended to pull the U.S. population back from the
brink of extinction, have been cooperative efforts among the Service,
AGFD, Marine Corps Air Station--Yuma, Luke Air Force Base, BLM, and
OPCNM, with volunteer efforts from the Arizona Desert Bighorn Sheep
Society, Arizona Antelope Foundation, and the Yuma Rod and Gun Club.
The U.S. wild population of Sonoran pronghorn has rebounded from 21
in 2002 to 80-90 in 2010; this increase has been facilitated by the
collaborative recovery efforts for this species. However, at 80-90
animals currently, the U.S. population is far from being secure. We
have begun to work with our Mexican partners on recovery of the Sonoran
pronghorn in Sonora. Although the number of pronghorn in Sonora (482
animals) is significantly greater than in the United States, the safety
net of water sources and forage plots is not in place there, and a
severe drought could decimate those populations.
Reestablishment Areas
O'Brien et al. (2005) used landscape-level classification and
modeling to assess potential Sonoran pronghorn habitat in southwestern
Arizona, including current and historical range, as a means of
beginning the process of identifying potential locations for
establishing a second U.S. Sonoran pronghorn herd. Both models
identified greater than 4,632 square miles (sq. mi) (greater than
12,000 square kilometers (sq. km)) of potential habitat (O'Brien et al.
2005, pp. 28-30). The largest blocks of potential habitat outside of
the current range were the Ranegras and Harquahala plains, King Valley
at Kofa NWR north of Interstate 8; Sentinel Plain and other areas to
the west between Interstate 8 and the Gila River; and areas not
currently occupied south of Interstate 8 and immediately west of
Highway 85. The models also identified a large land area east of
Highway 85 and south of Interstate 8 as potential habitat. The authors
did not evaluate potential habitats in the far eastern portions of the
historical range of the Sonoran pronghorn in Arizona (O'Brien et al.
2005, Figs. 3 and 4). O'Brien et al. (2005, p. 32) further explained
that their models were an initial step toward identifying and
evaluating potential translocation sites. They recommended soliciting
public input, and reviewing predator presence and density, fencing, and
the presence of preferred forage and water as additional steps in the
evaluation process (O'Brien et al. 2005, p. 32).
An Interdisciplinary Team (IDT), comprising members of the Sonoran
Pronghorn Recovery Team, the Tohono O'odham Nation, and representatives
from land management agencies located in southwestern Arizona, was
convened in 2008 to address these and other issues and considerations,
and to recommend specific areas for establishing an additional U.S.
herd or herds. Development of alternatives for population establishment
entailed consideration of three key variables: (1) Geographical areas
for establishing populations outside of the current range; (2)
potential establishment techniques; and (3) legal status of established
populations under the Act. Each of these three key variables had a
range of options. The IDT evaluated the three key variables to arrive
at the most effective combinations of geographical areas, establishment
techniques, and legal status options.
The IDT conducted a mapping exercise to identify areas within the
historical range of Sonoran pronghorn in the United States that were
under Federal or State ownership and that contained suitable habitat
for the species. The result of this exercise was identification of
seven potential reestablishment areas, designated Areas A through G.
The seven areas were then ranked by the IDT, using seven selection
criteria, to determine the best areas for translocation. Area A (King
Valley at Kofa NWR, and adjacent portions of primarily Yuma Proving
Grounds and BLM lands) and Area D (primarily portions of the BMGR-E,
BLM lands, and a portion of the Tohono O'odham Nation, all east of
Highway 85) were ranked 1 and 2, respectively.
Public scoping for the Sonoran pronghorn population establishment
project included three open houses held in November 2008 on successive
evenings at Yuma, Tucson, and Phoenix, Arizona. After consideration of
public input, two alternatives were carried forward in the National
Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) process,
including establishment of Sonoran pronghorn in Areas A and D, which we
will implement as per this final rule. Specific population
establishment techniques are described for both areas (see Release
Procedures, below), and we are establishing Sonoran pronghorn as a NEP
in these areas under section 10(j) of the Act.
The NEP encompasses Areas A and D in Arizona, as well as all areas
into
[[Page 25596]]
which Sonoran pronghorn are likely to disperse. The NEP is defined as
follows: An area north of Interstate 8 and south of Interstate 10,
bounded by the Colorado River on the west and Interstate 10 on the
east; and an area south of Interstate 8, bounded by Highway 85 on the
west, Interstates 10 and 19 on the east, and the United States-Mexico
border on the south.
Section 10(j) of the Act requires that an experimental population
be wholly separate geographically from other wild populations of the
same species. The Colorado River; Interstates 8, 10, and 19; and
Highway 85, which form the boundaries of the NEP, are barriers to
movement. Interstate 8 separates Area A from the current U.S.
population, and Highway 85 forms a boundary between Area D and the
current U.S. population. We do not expect Sonoran pronghorn to cross
these barriers. Brown and Ockenfels (2007, p. 29) found that high-speed
highways with right-of-way fences, such as these, were virtually
Sonoran pronghorn-proof due to comprehensive fencing and high-volume
traffic, and that interstate highways are effectively impassable for
the species. Only once, in 1973, has a Sonoran pronghorn been known to
cross Interstate 8 (Phelps 1981, p. 27). In 2008, a Sonoran pronghorn
crossed Highway 85 and its associated right-of-way fences into BMGR-E
(Howard 2008, pers. comm.); this is the only confirmed case of a
Sonoran pronghorn crossing Highway 85 and its right-of-way fences.
However, in July 2010, an unconfirmed sighting of a pronghorn doe was
reported well east of Highway 85 in BMGR-E. This animal was not
collared or ear-tagged, so its origins are uncertain, but it presumably
crossed Highway 85 into BMGR-E from the wild population. No other
documented cases of Sonoran pronghorn crossing Highway 85 and its
right-of-way fences are known.
Nonetheless, in the unlikely event that a Sonoran pronghorn moves
outside the NEP, the individual or individuals would not constitute a
population. Our regulations define ``population'' as a ``group of fish
or wildlife * * * in common spatial arrangement that interbreed when
mature'' (50 CFR 17.3) and thus determine that a ``geographic
separation'' is any area outside the area in which a particular
population sustains itself. See Wyo. Farm Bureau Fed'n v. Babbitt, 199
F. 3d 1224, 1234 (10th Cir. 2000). These definitions preclude the
possibility of population overlap as a result of the presence of
individual dispersing Sonoran pronghorn--by definition lone dispersers
do not constitute a population or even part of a population, since they
are not in ``common spatial arrangement'' sufficient to interbreed with
other members of a population. The evidence suggests that the
likelihood of a lone pronghorn crossing the NEP boundary is very low,
so it follows that the probability of that lone disperser encountering
another Sonoran pronghorn of the opposite sex and reproducing is even
more remote.
The status, as endangered or as a member of the NEP, of any
dispersing Sonoran pronghorn that manages to cross Highway 85,
Interstate 8, or other barriers between the NEP and the current range
is defined geographically. Any Sonoran pronghorn within the NEP area is
considered a member of the nonessential experimental population
(including any dispersing animals from within the current range that
cross into the NEP area), whereas any Sonoran pronghorn outside of the
NEP is fully protected under the Act as an endangered species.
The geographical extent of the NEP designation includes areas
unlikely to be used by Sonoran pronghorn, as only portions of this
proposed NEP area contain suitable habitat. In the NEP area, Sonoran
pronghorn habitat is limited to undeveloped areas within valleys.
Mountainous areas, such as the Kofa, Castle Dome, Palomas, and Gila
Bend mountains, do not provide habitat for this species; nor do
developed areas within the valleys, such as agricultural areas and
towns and cities. However, the NEP area represents what we believe to
be the maximum geographical extent to which Sonoran pronghorn could
move if released in Areas A and D. Once released into these areas, we
expect the Sonoran pronghorn population(s) to grow and expand into
adjacent suitable habitats, potentially moving to the boundaries of the
NEP. In the unlikely event that any of the released Sonoran pronghorn,
or their offspring, move across interstate highways or other barriers
(e.g., rivers or mountainous areas, developed agriculture areas, or
urban areas) to outside the designated NEP area (but not into the area
occupied by the wild population), then the Service will evaluate the
need, in the context of the 10(j) requirements, to amend the 10(j) rule
to enlarge the boundaries of the NEP area to include the area of the
expanded population. As discussed above, the likelihood of Sonoran
pronghorn moving from the NEP area into the current range is very low.
Release Procedures
The IDT developed the methods of release of Sonoran pronghorn into
Areas A and D with the objective of maximizing the likelihood of
success in establishing herds, while minimizing the impact to the
source population (the animals in the captive breeding pen at Cabeza
Prieta NWR) and limiting mortality or injury to translocated Sonoran
pronghorn to the maximum extent possible. In King Valley, Kofa NWR
(Area A), a rectangular-shaped, 0.5-square-mile (sq.-mi) (1.29-square-
kilometer (sq.-km)) captive-breeding pen will be constructed. The pen
will include water sources and irrigated areas to enhance forage
production, as well as two observation towers from which the animals
will be monitored. In December 2011/January 2012, we anticipate moving
11 Sonoran pronghorn (10 females and 1 male) to the pen from the
captive-rearing pen at Cabeza Prieta NWR. These animals will be
captured, either by use of a boma (a circular trap used inside the pen)
or tranquilizer dart gun and moved one or two at a time by helicopter.
Prior to movement to Kofa NWR, Sonoran pronghorn will be screened
for epizootic hemorrhagic disease (EHD) and bluetongue (BTV). Both
diseases can infect bighorn sheep and mule deer, as well as Sonoran
pronghorn. To ensure these diseases are not inadvertently moved to Kofa
NWR, only Sonoran pronghorn not exhibiting clinical signs (active
lesions) of EHD and BTV will be transported to the new captive breeding
pen at Kofa NWR. Biennial rotation of the breeding male and death of
any Sonoran pronghorn in the breeding pen at Kofa NWR would require
additional flights to bring new animals from Cabeza Prieta NWR. Methods
perfected at Cabeza Prieta NWR will be employed in these activities,
which have been used successfully with minimal mortality of pronghorn.
Assuming successful captive-breeding at the Kofa NWR pen, up to 20
Sonoran pronghorn will be released annually into suitable habitats
outside of but adjacent to the pen site at Kofa NWR, beginning as early
as the winter of 2012 or 2013 and recurring each winter until 2020.
Sonoran pronghorn in the pen, as well as animals released, will be
closely monitored to determine success or need for adaptive management.
Success criteria will be developed by the recovery team prior to the
release of any animals, but the objective will be to continue releases
until the population can sustain itself without augmentation.
Concurrently, but only if excess animals are available from the
captive-breeding pen at Cabeza Prieta NWR (not needed to augment
existing herds or for the pen at Kofa NWR), these animals will be
[[Page 25597]]
captured from the pen, transported to a holding pen in Area D, held
temporarily, and then released as a group. The holding pen in Area D is
located in the Midway Well area near Hat Mountain (an area locally
known as BMGR-E ``Area B'') in Maricopa County, Arizona. Ideally, the
Sonoran pronghorn will be captured together and moved quickly to a
holding pen, allowed to recover for a brief period, and released
together.
Released animals in Area D will be monitored via aircraft and on-
the-ground personnel to determine survival, reproduction, and other
measures of success. Details of the monitoring plan will be developed
prior to release and will include collection of enough data to
quantitatively determine if we are meeting success criteria and, if
not, what needs to be corrected to ensure success. Through adaptive
management, release techniques and other management will be revised as
needed to ensure success. Additional description of the release
procedures and monitoring protocols can be found in the final EA (for
copies of this document, see ADDRESSES above).
Status of Reestablished Populations
We have determined that these reestablished populations are
nonessential, based on the following:
(a) Wild populations of the Sonoran pronghorn, totaling about 562
to 572 animals, currently exist at: (1) Cabeza Prieta NWR, OPCNM, BMGR,
and adjacent BLM lands; (2) in the El Pinacate region of Sonora; and
(3) south and east of Highway 8 in Sonora.
(b) A captive-breeding pen at Cabeza Prieta NWR maintains a captive
population and provides stock to augment the wild populations in
Arizona and Sonora. The pen has been highly successful. It was first
stocked with Sonoran pronghorn in 2004; the original group of 11
animals has grown to 69 (May 2010), and another 44 Sonoran pronghorn
have been released from the pen into the wild.
(c) The first priority for use of animals in the captive-breeding
pen at Cabeza Prieta NWR is to augment herds within the boundaries of
the current range of the species. Relocation of Sonoran pronghorn from
the captive breeding pen to Kofa NWR will not appreciably inhibit the
augmentation efforts for the herds within the boundaries of the current
range of the species. Sonoran pronghorn produced at the Cabeza Prieta
NWR pen that are not needed to augment herds within the current range
or to populate the Kofa NWR pen will be used to establish a population
in Area D.
(d) The possible failure of this action will not appreciably reduce
the likelihood of survival of the species in the wild, because (1) the
first priority for use of Sonoran pronghorn from the captive-breeding
pen at Cabeza Prieta NWR is to augment the wild herd, and (2) recovery
actions have been, and continue to be, implemented in the United States
to reduce the effects of drought on the species (Service 2009, pp. 9,
18-19).
(e) Through programs of work endorsed by the Canada/Mexico/U.S.
Trilateral Committee for Wildlife and Ecosystem Conservation and
Management, the Service and AGFD coordinate with our Mexican partners
on recovery actions for Sonoran pronghorn in Mexico, enhancing the
likelihood of their survival and recovery.
We will ensure, through our section 10 permitting authority and the
section 7 consultation process, that the use of Sonoran pronghorn from
the donor population at Cabeza Prieta NWR for releases in Areas A or D
is not likely to jeopardize the continued existence of the species in
the wild. Establishment of additional Sonoran pronghorn populations
within the species' historical range is a necessary step in recovery
(Service 2002, p. 38).
The special rule that accompanies this 10(j) rule is designed to
broadly exempt take of Sonoran pronghorn from the section 9
prohibitions outside of National Wildlife Refuge and National Park
Service lands, as long as the take is incidental to otherwise lawful
activities. We provide this exemption because we believe that
incidental take of members of the NEP associated with otherwise lawful
activities will not pose a substantial threat to the recovery of
Sonoran pronghorn, as activities that currently occur or are
anticipated in the NEP area are generally compatible with Sonoran
pronghorn recovery. For example, in Area A, there are vast expanses of
open valleys without major barriers to Sonoran pronghorn movement that
provide suitable habitat. These valleys include King Valley at Kofa
NWR, Palomas Plain, the southern end of the Ranegras Plain, and
portions of the Yuma Proving Grounds. The La Posa Plain and Castle Dome
Plain also provide habitat. Highway 95 runs north-south through those
plains, and although it may somewhat inhibit movement to the west side
of those plains, it is not a substantial barrier because it lacks
right-of-way fences. In Area D, there is considerable habitat in the
valleys among the Sauceda, Sand Tank, Batamote, and other mountains in
that region.
There are existing military activities at Yuma Proving Grounds in
Area A and BMGR-E in Area D, but pronghorn have coexisted with military
activities for many years at the BMGR (deVos 1990, pp. 49-50; Krausman
et al. 2004, pp. 29-33; Krausman et al. 2005, pp. 20-22); as a result,
we believe they will persist with the similar activities conducted at
Yuma Proving Grounds and in Area D. Although some forms of military
activities could potentially result in incidental death or injury of
individual pronghorn, no incidental take has ever been documented due
to military activities, even before precautions were set in place as a
result of section 7 consultations to minimize the likelihood of such
take at the BMGR.
There is some likelihood of Sonoran pronghorn drowning in canals in
Area A. Canals are present in agricultural areas on the southern,
eastern, and northeastern portions of Area A; Sonoran pronghorn are
known to drown in such canals (Rautenstrauch and Krausman 1986, p. 9).
The major canal in Area A most likely to be accessed by Sonoran
pronghorn is the Wellton Canal, located north of the Gila River and on
the northern edge of the agricultural lands in the Gila Valley. It is
equipped with ramps and steps designed to prevent ungulate drownings.
In addition, a series of wildlife water sources exists to the north of
the canal as alternative water sources. Most of the canals elsewhere in
Area A are too small to result in Sonoran pronghorn entrapment, or are
surrounded by agriculture or other developments and are unlikely to be
accessed by Sonoran pronghorn. Other activities such as recreational
hunting and camping, vehicle use, livestock grazing, and small-scale
rural or agricultural development, are anticipated to either have
minimal effects on Sonoran pronghorn or will be limited in extent
(e.g., rural and agricultural development).
Under section 7(a)(1) of the Act, all Federal agencies are mandated
to use their authorities to conserve listed species. In addition, the
BLM has a policy of conferring with the Service, under section 7(a)(4),
on their actions that may affect proposed species (BLM 6840 Manual).
Some activities do have greater potential to compromise the success of
the Sonoran pronghorn reestablishment than those described above. For
instance, construction of new highways, particularly those with rights-
of-way fencing, or new canals in the NEP could create barriers to
movement and bisect important pronghorn habitats. There is also the
potential for BLM to permit large-scale solar power
[[Page 25598]]
plants, which would be constructed in the valleys and could eliminate
up to tens of thousands of acres of habitat. Other BLM-authorized
projects, such as agricultural leases, could also potentially remove
large blocks of habitat and perhaps compromise the success of this
project. The potential for these projects to impact the reestablishment
is probably greatest on BLM lands in the valleys to the east of Kofa
NWR. The Service will have the opportunity through the section 7(a)(4)
conference process to work with the BLM to minimize the potential
adverse effects of solar plants, agricultural leases, highways, or
other projects that may compromise Sonoran pronghorn recovery.
Management
The lands within the NEP area are managed and listed in descending
order of acreage within areas A and D as follows: Area A--the Service
(Kofa NWR), Department of the Army (Yuma Proving Grounds), BLM, Arizona
State Lands Department, private landowners, and Colorado River Indian
Tribes; Area D: Tohono O'odham Nation, BLM, Department of the Air Force
(BMGR-E), private owners, and Arizona State Land Department. Outside of
Areas A and D, but within the NEP, land ownership is similar, but also
includes lands within the Gila River Indian Reservation, Ak-Chin Indian
Reservation, Pascua Yaqui Indian Reservation, San Xavier Reservation,
Buenos Aires NWR, Saguaro National Park, OPCNM, Tucson Mountain Park,
and Coronado National Forest. Due to the management flexibility
provided by the NEP designation and the special rule, we do not
anticipate that establishment of Sonoran pronghorn in Areas A or D and
subsequent dispersal of Sonoran pronghorn from the release sites will
affect management on Tribal, BLM, National Forest, Department of
Defense, State, or private lands.
Through section 7 consultations on NWR lands and National Park
Service lands, some changes in management may occur to reduce adverse
effects to Sonoran pronghorn, including minimizing the likelihood of
incidental take. However, we believe few changes will be needed,
because management of these lands already is broadly compatible with
Sonoran pronghorn recovery. Other Federal agencies that propose actions
on Kofa NWR or National Park Service lands will also be required to
consult with us under section 7 of the Act, if such activities may
affect Sonoran pronghorn. For instance, some activities conducted by
Yuma Proving Grounds (e.g., overflights of Kofa NWR) will be subject to
the consultation requirements. Some Federal agencies, such as BLM, that
propose actions outside of Kofa NWR or National Park Service lands may
elect to work with the Service voluntarily through the section 7(a)(4)
conferring process to ensure that adverse effects of their actions on
Sonoran pronghorn in the NEP area are minimized.
The Service (Cabeza Prieta NWR, Kofa NWR, and the Ecological
Services office in AZ), AGFD, OPCNM, Luke Air Force Base, BLM, and
other partners, in close coordination with the Sonoran Pronghorn
Recovery Team, will plan and manage the establishment of new
populations of Sonoran pronghorn. This group will closely coordinate on
releases, monitoring, and coordination with landowners and land
managers, among other tasks necessary to ensure successful population
establishment. Management issues related to the Sonoran pronghorn NEP
that have been considered include:
(a) Mortality: ``Incidental take,'' as defined by regulation at 50
CFR 17.3, is take that is incidental to, and not the purpose of, the
carrying out of an otherwise lawful activity, such as agricultural
activities and other rural development, ranching, military training and
testing, camping, hiking, hunting, vehicle use of roads and highways,
and other activities that are in accordance with Federal, Tribal,
State, and local laws and regulations. With the finalization of this
10(j) rule, incidental take of Sonoran pronghorn within the NEP area
outside of National Wildlife Refuge and National Park Service lands
will not be prohibited, provided that the take is unintentional, not
due to negligent conduct, and is in accordance with the special rule
that is a part of this 10(j) rule. However, if there is evidence of
intentional take, not authorized by the special rule or by a section 10
permit, of a Sonoran pronghorn within the NEP we will refer the matter
to the appropriate law enforcement entities for investigation. We
expect levels of incidental take to be low, because, as discussed in
paragraph (d) under Status of Reestablished Populations, above, the
establishment of new populations is compatible with most existing human
use activities and practices for the area. In the current range of the
Sonoran pronghorn in the United States, no incidental take has been
documented from military activities, recreation, use of highways, and
most other activities that occur both in the current range and in the
NEP, the exception being canals, in which Sonoran pronghorn have
drowned on several occasions. More specific information regarding take
can be found in the Regulation Promulgation section of this final rule.
(b) Special handling: In accordance with 50 CFR 17.21(c)(3), ``any
employee or agent of the Service, any other Federal land management
agency, the National Marine Fisheries Service, or a State conservation
agency, who is designated by his agency for such purposes, may, when
acting in the course of his official duties'', handle Sonoran pronghorn
to aid sick or injured Sonoran pronghorn, or to salvage dead Sonoran
pronghorn. However, other personnel and their agents, not specifically
named in these regulations, will need to acquire permits from the
Service for these activities.
(c) Coordination with landowners and land managers: During the NEPA
scoping process, the Service and cooperators identified issues and
concerns associated with the proposed Sonoran pronghorn population
establishment. The population establishment was also discussed with
potentially affected State agencies, tribes, and private landowners.
All land owners and managers also had an opportunity to review and
comment on the draft EA and proposed rule. State and Federal land
management agencies either supported or did not oppose the
reestablishment of a Sonoran pronghorn herd and designation as a NEP;
however, at least two private landowners in the NEP expressed
opposition to the proposal. U.S. Customs and Border Protection strongly
encouraged limiting reestablishment to Area A. See the section Summary
of Public and Peer Review Comments and Recommendations below for
summaries of those comments and how we addressed any concerns.
(d) Monitoring and Adaptive Management: A monitoring and adaptive
management plan for the population establishment program will be
implemented by the Service, AGFD, and other partners to determine if
the program is successful, and to adjust management as needed to ensure
success. Success criteria have not yet been finalized, but they will
include the concept that the objective of the program is to establish
Sonoran pronghorn herds that are self-sustaining without augmentation
via releases from captive pens or holding facilities, thereby
contributing to recovery goals. The monitoring will assess all aspects
of the population establishment program, from capture and movement of
the animals to the captive breeding pen (Area A) or holding area (Area
D), monitoring of the animals in these captive facilities, and
monitoring and
[[Page 25599]]
tracking released Sonoran pronghorn in the release areas, including
Sonoran pronghorn water sources and any forage enhancement vegetation
plots developed to support the established herds. Monitoring of
released Sonoran pronghorn will be conducted to determine the
following:
(1) Mortality and recruitment rates,
(2) causes of mortality among adult and juvenile Sonoran pronghorn,
(3) reliance on freestanding water sources,
(4) movement corridors and barriers to movements, and
(5) habitat preferences.
Each released animal will be fitted with an ear tag and radio
collar. A limited number of Sonoran pronghorn will be fitted with
Geographic Positioning System (GPS) platform telemetry collars. It is
expected the GPS transmitters will function for up to 3 years.
Telemetry flights with a fixed-wing aircraft will be conducted twice a
month. Each Sonoran pronghorn will be observed from an altitude of
1,000 feet (ft.) above ground level with the aid of binoculars. Group
size and composition (sex and age), habitat type, and terrain will be
recorded. Additional monitoring of individual Sonoran pronghorn and
herd movements will be done from the ground, particularly from high
points where valley habitats of the Sonoran pronghorn can be viewed.
All monitoring flights and on-the-ground surveillance will be closely
coordinated with and approved by the tribal, military, and other land
managers and owners where such monitoring will occur. As Sonoran
pronghorn become established and breed in the establishment areas, the
percentage of animals tagged or radio-collared will decline over time,
and additional animals may need to be captured and radio collared to
adequately monitor the herds. We will attempt to maintain radio collars
on at least 10 percent of a population.
Monitoring data will be assessed regularly by the Recovery Team,
and methods will be revised as needed to increase the likelihood of
successful population establishment and to increase efficiency. A
comprehensive review, assessment, and report of the reestablishment
program by the Recovery Team will occur at a frequency of no less than
once every 5 years. If at any point the program is not meeting its
stated objective, or is falling short of meeting the success criteria,
techniques and methods will be reviewed and revised as needed to
correct problems and increase the likelihood of success. If revisions
fall outside the scope of the action evaluated in the EA and FONSI, all
necessary environmental compliance will be completed before those
revised techniques or methods are implemented. Additional details of
the monitoring and adaptive management plan, including quantifiable and
measurable success criteria, will be finalized and posted on our Web
site at http://www.fws.gov/southwest/es/arizona/ prior to release of
Sonoran pronghorn into Areas A or D.
(e) Public awareness and cooperation: Public scoping for the
Sonoran pronghorn population establishment project was conducted in the
fall of 2008. Actions included an October 30, 2008, scoping letter sent
to approximately 6,000 recipients, a news release to local media
sources, and a series of 3 open houses held in the Arizona cities of
Yuma, Tucson, and Phoenix, during November 18-20, 2008. We accepted
written public scoping comments until December 12, 2008. We received 44
written responses about the project. In our EA, we discussed issues
identified in the responses. The IDT and the Service used these issues
to refine the proposed action and alternatives in the EA, and to
identify mitigation measures to avoid or reduce potential project
effects. The IDT and the Service also used the public concerns to
determine which resources would be the greatest focus of the EA
analysis. The comments received during the scoping process are listed
in the EA, and were considered in the formulation of alternatives
considered in the NEPA process. The following section describes the
public outreach we conducted and the responses received during the
public and peer review comment periods on the proposed rule and draft
EA.
Section 7 Consultation
A special rule under section 4(d) of the Act is included in this
establishment of an experimental population under section 10(j) of the
Act. A population designated as experimental is treated for the
purposes of section 9 of the Act as threatened, regardless of the
species' designation elsewhere in its range. The development of
protective regulations for a threatened species is an inherent part of
the section 4 listing process. The Service must make this determination
considering only the ``best scientific and commercial data available.''
A necessary part of this listing decision is also determining what
protective regulations are ``necessary and advisable to provide for the
conservation of [the] species.'' Determining what prohibitions and
authorizations are necessary to conserve the species, like a listing
determination of whether the species meets the definition of threatened
or endangered, is not a decision that Congress intended to undergo
section 7 consultation.
Actions associated with the establishment of the experimental
population, such as construction of pens or the movement of wild
animals, will undergo section 7(a)(2) consultation, as appropriate.
Summary of Public and Peer-Review Comments and Recommendations
On February 4, 2010, we published our proposed rule to establish a
NEP of Sonoran pronghorn in southwestern Arizona (75 FR 5732), and
requested written comments from the public on the proposed rule and
draft EA. We also contacted the appropriate Federal, State, and local
agencies; tribes; scientific organizations; and other interested
parties and invited them to comment on the proposed rule and draft EA.
The initial comment period was open from February 4, 2010, to April 5,
2010. A second comment period was open from June 9, 2010, to July 9,
2010 (75 FR 32727). A public hearing was held in Gila Bend, Arizona, on
February 23, 2010; however, no verbal or written comments were
submitted at that hearing.
In accordance with our policy on peer review, published on July 1,
1994 (59 FR 34270), we solicited opinions from three expert biologists
who are familiar with this species regarding pertinent scientific or
commercial data and assumptions relating to supportive biological and
ecological information for the proposed rule. Reviewers were asked to
review the proposed rule for accuracy and validity of its biological
information and assumptions. Two out of three peer reviewers provided
comments. They were both supportive of the proposal to reestablish the
Sonoran pronghorn in areas of southwestern Arizona, but suggested
revisions or had some questions about the proposal. The remaining peer
reviewer asked for additional information, but did not submit a final
peer review. Their letter requesting additional information is counted
as a response, with no position taken.
We reviewed all comments received from the peer reviewers,
agencies, and the public for substantive issues and new information
regarding the proposed NEP. Substantive comments received during the
comment period have been addressed below and, where appropriate,
incorporated directly into this final rule. The comments are grouped
below as peer review and agency or public comments.
We received responses from 29 parties, comprising private
individuals
[[Page 25600]]
(15), nongovernmental organizations (4), peer reviewers (3), state
agencies (2), Federal agencies (3), university (1), and anonymous (1).
Some commenters clearly supported (10), opposed (4), or took no
position (7) on the proposal. In addition, two supported the
reestablishment, but opposed the NEP. One supported population
reestablishment, but conditioned their support of the NEP on continued
strong commitment by the Department of Defense to Sonoran pronghorn
conservation. One conditioned their support on implementation of
predator control, acknowledgement of the importance of water sources,
and no impacts to hunting. Two others opposed the proposal unless
predator control was conducted. One supported the Kofa NWR
reestablishment but not the BMGR-E reestablishment, and one supported
the BMGR-E reestablishment, but opposed the NEP and establishment of a
population at Kofa NWR.
The two peer reviewers who submitted comments agreed with the
following determinations: (1) The proposed establishment of
experimental, nonessential populations of Sonoran pronghorn is well
considered and has great potential to enhance the status of Sonoran
pronghorn in the United States, and (2) proposed survey, monitoring,
and capture techniques, and operation of the captive breeding pen, are
within accepted practices in wildlife management. However, one
commenter asked that the details of the monitoring program and success
criteria be more clearly stated.
Peer-Review Comments
(1) Comment: Continual improvement in capture methods should be
pursued on non-endangered subspecies across the range of the pronghorn
to increase efficiency in capturing and maintaining captive
populations.
Our Response: Consistent with Adaptive Management in the EA and the
recovery plan, we will continue to evaluate new information, including
publications, reports, and personal communications with others working
on Sonoran pronghorn throughout its range. We will also learn from our
experiences with Sonoran pronghorn to fine tune and improve capture
methodologies, with the goal of minimizing stress and the possibility
of injury or mortality of captured animals, while increasing efficiency
of capture operations.
(2) Comment: Although habitat modeling to identify habitat suitable
for reestablished populations is adequate at the landscape scale,
additional work is needed to pinpoint the adequacy of habitat prior to
releases. Cholla is a key forage plant that is missing or scarce north
of Interstate 8. Supplemental feeding may be necessary in that area
during prolonged drought.
Our Response: As discussed under ``Reestablishment Areas'' above,
an IDT was tasked with identifying and ranking possible reestablishment
areas within the historical range of the Sonoran pronghorn. Areas A and
D ranked first and second of seven areas identified. Potential
locations for a captive pen at Kofa NWR are somewhat limited by
extensive wilderness designation that precludes construction and
operation of that facility. Hence a block of non-wilderness, large
enough to accommodate the pen, was selected in northern King Valley.
This is a good location, because the pen will be located off well-
traveled roads, yet it is relatively close to Highway 95, the access
route from Yuma, and its location in the northern part of the valley
provides an opportunity for pronghorn released directly from the pen to
spread out throughout King Valley before moving off-refuge to areas of
Yuma Proving Grounds or BLM lands. The IDT considered the absence of
chain fruit cholla on Kofa NWR in its rankings of the seven areas. One
of the seven criteria used to rank the areas was forage quality. The
absence of chain fruit cholla is a concern; however, the value of that
plant in the diet of the Sonoran pronghorn is primarily as a source of
preformed water; it provides little nutrition (Fox 1997, pp. 76, 79).
As a result, if freestanding water is available or can be provided
dependably, the importance of chain fruit cholla in the diet is much
reduced. Five water sources outside of the pen at Kofa NWR will be
built to provide dependable water for Sonoran pronghorn. Water sources
and chain fruit cholla are available on BMGR-E in Area D near where the
holding pen will be constructed, and, if needed, additional water
sources will be constructed; hence, water for drinking is not
anticipated to be a limiting factor at BMGR-E.
(3) Comment: The movement of released Sonoran pronghorn might be
underestimated, particularly as the populations grow. In particular,
there is a possibility of Sonoran pronghorn moving south in Area D into
Organ Pipe Cactus NM east of Highway 85, and then west into the areas
occupied by the wild population.
Our Response: Some of the young male Sonoran pronghorn released
from the pen in Cabeza Prieta NWR have moved extraordinary distances,
and across barriers including, on at least two occasions, the right-of-
way fence along Highway 85, a vehicle barrier constructed on the U.S./
Mexico border, and Highways 2 and 8 in Sonora, Mexico. Released Sonoran
pronghorn that wander over large areas tend to continue these long-
distance movements until they find and join an existing herd or another
Sonoran pronghorn. Although such movements are expected to be unusual,
we agree that as Sonoran pronghorn are released and as populations
grow, individuals will periodically make long-distance movements and
some animals could potentially move across Highway 85 from Area D into
areas occupied by the wild herd. Similarly, Sonoran pronghorn released
from the pen at Cabeza Prieta NWR may occasionally move across Highway
85 into Area D.
Although these movements could occur more frequently as populations
on both sides of Highway 85 increase, we do not anticipate they will
ever be more than rare events for the reasons discussed in
``Reestablishment Areas'' above, hence we do not anticipate overlap of
the wild population and the NEP. Lone dispersers do not constitute a
population or even part of a population, because they are not in
``common spatial arrangement'' sufficient to interbreed with other
members of a population (see discussion under ``Reestablishment
Areas''). Furthermore, the likelihood of a Sonoran pronghorn moving
from the release site on BMGR-E south to the area east of Highway 85 in
OPCNM is remote, because a Sonoran pronghorn would have to traverse
miles of rugged terrain from the holding pen at Midway Wash through the
Batamote/Coffee Pot Mountain region to reach the Hickiwan Valley or
Pozo Redondo Valley, and then move south and west from there across
Highway 86 and through the Gunsight Hills, then down the western bajada
of the Ajo Mountains. Years of surveys have shown that Sonoran
Pronghorn do not use the rugged slopes and mountainous terrain
characteristic of this area (Hervert et al. 2005, p. 12).
(4) Comment: One peer reviewer expressed concern that there is a
remote possibility of a Sonoran pronghorn moving through Area D south
and east to Buenos Aires NWR, where a population of Mexican pronghorn
(Antilocapra americana mexicana) currently exists.
Our Response: Buenos Aires NWR is in the southeastern portion of
the NEP area, and is within the historical range of the Sonoran
pronghorn (Service 2002, p. 17). The NEP area includes all regions into
which Sonoran pronghorn could
[[Page 25601]]
potentially move from release sites. Although over 90 miles southeast
of the release site, we agree there is a small probability that Sonoran
pronghorn could reach Buenos Aires NWR at some point in the future. The
major barrier between the two areas is likely a complex of rugged
terrain between the release site and Sonoran pronghorn habitat to the
east and south, formed by the Batamote, Sauceda, Sand Tank, and other
ranges. If a Sonoran pronghorn could get past that barrier, then
potentially it could move through the valleys of the Tohono O'odham
Nation, and then around the north end of the Quinlan Mountains, across
Highway 86 and south through the Altar Valley to Buenos Aires NWR.
Historically a more direct route probably existed south of the
Baboquivari Mountains in Mexico, but a vehicle barrier and livestock
fence on the United States/Mexico border now block that route.
In the unlikely event that a Sonoran pronghorn reached Buenos Aires
NWR, the Service would be required to assess the effects of its actions
at the refuge, including managing herds of Mexican pronghorn, and
conduct intra-Service section 7 consultation if those activities may
affect the Sonoran pronghorn. A decision on how to proceed would emerge
from that process and would be based on the circumstances at the time.
(5) Comment: The proposed rule stated that success criteria would
be developed by the recovery team prior to release of any Sonoran
pronghorn into areas A or D. Success criteria drive the types of
monitoring needed. Some parameter(s) of success need to be identified.
Our Response: Broadly defined, success will be measured by our
ability to achieve the purpose of the program, which, as stated in the
EA (p. 19) and our recovery plan (Service 2002, p. 38), is to
contribute to recovery of the Sonoran pronghorn by establishing
additional populations in suitable habitat within its historical range
in Arizona. In accordance with 50 CFR 17.81(c)(4), a technical
definition of what it means to establish a population of Sonoran
pronghorn will, as the commenter notes, be forthcoming; however, it
will almost certainly involve the presence of Sonoran pronghorn
surviving and breeding in the wild to an extent that, at some point,
release of additional animals to augment the population--either via the
captive breeding pen at Kofa NWR or the holding pen in Area D-- is no
longer needed to sustain the population.
(6) Comment: If the reestablished populations cannot be sustained
into the future without intensive management, this needs to be clearly
stated.
Our Response: Some level of management will always be needed to
maintain the reestablished herds. These management actions will be
undertaken by the Service, in conjunction with our partners, including
AGFD. The Sonoran pronghorn will need to be monitored to track their
status, water sources will need to be maintained for them, and the
lands they occupy must remain as habitat capable of supporting a viable
herd. However, once a population is established to the degree that
additional augmentation is no longer needed to sustain it, we
anticipate that some intensive management actions, including the
maintenance of a captive rearing pen, will no longer be necessary.
(7) Comment: Not enough information is presented to determine if
the proposed monitoring will be adequate to determine whether the
program is successful, and to better determine the role of water and
forage enhancement plots in recovery, mortality, and recruitment rates;
causes of mortality by age and sex, movements; and the role of habitat
in the life history of the Sonoran pronghorn.
Our Response: The monitoring should not only allow us to determine
whether the program is a success, but if it is failing to meet its
objectives, the reason(s) why it is failing must emerge from the
monitoring data. The latter is crucial for making appropriate changes
in management to correct problems and ensure we achieve sustainable
herds in Areas A and D. Although our monitoring plan is not yet
complete, released animals in Area D will be monitored primarily via
aircraft to determine survival, reproduction, and other measures of
success. We acknowledge that all of the parameters noted by the
commenter above are important in terms of tracking the status of
Sonoran pronghorn populations. All of these factors will be carefully
considered in the development of the monitoring program in Areas A and
D.
Public Comments
(8) Comment: Establishment of additional herds of Sonoran pronghorn
in the United States is not needed because the animals at Cabeza Prieta
NWR are safe from extinction. Specifically, their continued existence
is ensured because Sonoran pronghorn have been captively reared,
resulting in a wild population of greater than 70 animals. An awareness
of the population's precarious nature has been raised, their status
will be closely watched, and animals from self-sustaining herds in
Mexico can be brought to the United States if the current population
crashes.
Our Response: The 1998 revision of the Sonoran Pronghorn Recovery
Plan established downlisting criteria to reclassify the subspecies from
endangered to threatened. Included in the downlisting criteria were
stipulations that an estimated 300 adult Sonoran pronghorn occur in one
U.S. population and a second separate population be established in the
United States, or numbers are determined to be adequate to sustain the
population through time (Service 1998, p. 37). At 80-90 wild Sonoran
pronghorn, the current U.S. population is not safe from extinction. A
1996 population viability analysis concluded that at least 300 Sonoran
pronghorn were needed in a population to achieve reasonable population
persistence over time; however, to prevent loss of genetic diversity,
500 or more animals were needed (Defenders of Wildlife 1996, p. vii).
The 2002 Supplement and Amendment to the Recovery Plan identified
``evaluating potential transplant locations, establishing relocation
methodology and protocols, developing interagency agreements (including
with Mexico as required), acquiring funding, and initiating
reestablishment projects'' as one of eight priority, near-term actions
needed to further recovery (Service 2002, p. 38.). In regard to
bringing additional animals north from Sonora, Mexico, to augment the
U.S. population, we cannot depend on the continued availability of
Sonoran pronghorn from Sonora, both in terms of required international
permits and the ability of Mexican populations to sustain additional
harvest. In conclusion, establishing additional herds of Sonoran
pronghorn in the United States is consistent with the recovery plan for
the species and will further its recovery, consistent with Service
mandates under section 4(f)(1) of the Act.
(9) Comment: Part of the funding for the population reestablishment
is coming from the Department of Homeland Security (DHS) as mitigation
for damage to Cabeza Prieta NWR, so the money should be spent at Cabeza
Prieta NWR.
Our Response: Funding provided by DHS for the establishment of
additional Sonoran pronghorn herds in the United States was closely
negotiated, and the use of those funds was specifically defined for
certain recovery actions. Mitigation funds for establishment of
additional U.S. herds were secured to mitigate effects of vehicle
barriers at Cabeza Prieta NWR and the BMGR, and the effects of the Ajo
1 SBInet Tower
[[Page 25602]]
Project. The purpose of this mitigation was to offset effects to
Sonoran pronghorn from these projects, not to mitigate or repair damage
to resources at Cabeza Prieta NWR. Consistent with the recovery plan,
one of the greatest needs for recovering the Sonoran pronghorn is to
establish additional herds, off of Cabeza Prieta NWR. The Service and
DHS agreed that use of the mitigation funds to establish additional
Sonoran pronghorn herds outside of the current range was an appropriate
offsetting measure.
(10) Comment: The proposed reestablishment will fail unless
predators of Sonoran pronghorn are controlled. Specifically, commenters
mentioned the need to control mountain lions at Kofa NWR and coyotes.
Our Response: Coyote, mountain lion, and bobcats are known to prey
on Sonoran pronghorn (Service 2002, p. 22). Predation generally has an
insignificant effect except on small populations (Lee et al. 1998, p.
61). Coyotes are the most abundant large predator sympatric with
Sonoran pronghorn. In 20 mortality investigations not related to
capture operations, coyotes killed at least 5 Sonoran pronghorn and are
suspected in the death of another. Of 23 Sonoran pronghorn released
from the captive breeding pen at Cabeza Prieta NWR in December 2009, 4
were predated by coyotes within the first 3 weeks. Since that time, one
other Sonoran pronghorn found dead from the original group of 23 was
probably predated, although the type of predator is unknown (Atkinson
2010, pers. comm.). Coyotes are thought to prey heavily on Sonoran
pronghorn fawns as well.
Steps will be taken to deter predators from entering the captive
breeding pen at Kofa NWR, including a perimeter fence constructed of
woven wire 5.5 ft. (1.7 m) tall and buried 1 ft. (0.3 m) into the
ground. The interior of the fence will be lined with material that will
create a visual blind for predators. In addition, two layers of
electric fences will be installed just outside of the woven wire fence
to deter predators. Monitors will check for presence of Sonoran
pronghorn predators inside the pen and holding facility daily, and if
any are found, they will be removed. The holding facility at BMGR-E
will be equipped with 5.5-ft (1.7-m) tall woven wire, but it will not
be buried and no electric fence will be installed. However, the
potential for predation will be minimized because pronghorn will not be
in the facility for more than a few days, and someone will be staying
with them all the time until they are released.
No predator control is proposed outside the pen at Kofa NWR and the
holding facility at BMGR-E, because predation types and levels are
anticipated to be similar to those at Cabeza Prieta NWR, where up to
this point, predator control has not been deemed necessary to recover
the Sonoran pronghorn. We anticipate that predation of released animals
in Area A and D is unlikely to affect the success of the
reestablishments, and mortality of released animals due to predators is
expected to be similar to that experienced at Cabeza Prieta NWR. We
will monitor the success of the population reestablishments, and
consistent with adaptive management and recovery actions 2.411 and
2.412 in the recovery plan, we will evaluate the monitoring data and
propose additional actions, if deemed necessary. Those additional
actions could include predator control outside of the captive breeding
pen at Kofa NWR or the holding pen at BMGR-E. However, predator control
outside the pens is not covered in the EA for establishing a NEP of
Sonoran pronghorn at Kofa NWR or BMGR-E. Hence, if predator control
were proposed, it would be closely coordinated with land managers and
AGFD, and would only proceed after all required environmental
compliance was completed.
(11) Comment: Development of additional water sources, such as
wildlife drinkers or tanks, should be undertaken to support the
population reestablishments. In addition, an ``Adopt a Game Tank''
program should be implemented for interested parties to monitor,
maintain, and repair water tanks for wildlife and game species.
Our Response: At Kofa NWR, we propose to develop up to seven water
sources for Sonoran pronghorn, including up to two inside of the pen
and five outside of the pen, but none in the Kofa Wilderness. At BMGR-E
and Area D, numerous developed wildlife water sources occur in
paloverde-mixed cacti-mixed scrub vegetation on the bajadas that could
potentially be used by Sonoran pronghorn. As a result, no new water
sources are planned for Area D; however, the need for additional
wildlife water sources will be evaluated and, if needed, new water
sources will be installed to support the reestablished Sonoran
pronghorn. Construction of any additional water sources in Area D would
be preceded by cultural resource surveys and any necessary
environmental compliance. The water sources at Kofa NWR were planned in
anticipation of the needs of the Sonoran pronghorn. Additional water
sources at Kofa NWR, beyond those mentioned above, are not anticipated;
however, consistent with proposed adaptive management and recovery
actions 2.411 and 2.412 in the recovery plan, we will evaluate the
monitoring data and propose additional water sources if deemed
necessary to support the reestablished populations. Any additional
water sources proposed at Kofa NWR would be outside the current scope
of the program and supporting environmental compliance; hence
additional coordination with land managers and AGFD and all necessary
environmental compliance would be completed prior to construction of
any additional water sources.
(12) Comment: The five water sources outside of the captive pen at
Kofa NWR should have their locations generally described and mapped.
Some flexibility in locations is desirable, so precise locations are
unnecessary. Cultural resource surveys should be conducted prior to
construction, and water sources should be built with the minimum
disturbance necessary and in the least visually obtrusive manner
possible.
Our Response: The approximate locations of the five water sources
outside the pen at Kofa NWR have been identified and mapped in the EA
(p. 36). Cultural resource surveys shall be conducted prior to any
ground-disturbance activities, and the water sources will be built with
the minimum disturbance necessary and in the least visually obtrusive
manner possible.
(13) Comment: The efficacy of additional water sources outside of
the pens is questionable based on published studies. The effects of
additional water sources on other species, as well as degradation of
areas around water sources as a result of increased wildlife use, need
to be fully evaluated.
Our Response: The benefits and costs of water developments for
wildlife in the arid southwest have been debated for many years (see
reviews in Rosenstock et al. 1999 and Krausman et al. 2006). Artificial
water sources in the southwest are used by a variety of wildlife
species, with nongame species far outnumbering game species (O'Brien et
al. 2006, pp. 544-548). Some species will use freestanding water
opportunistically, whereas others require it to occupy an area
(Krausman et al. 2006, pp. 565-566). Water sources can affect the
distribution of wildlife species and habitat use patterns of
individuals, although in some cases the effect is small (Marshal et al.
2006a, pp. 616-617). There is no evidence that water catchments elevate
predation rates on wildlife (O'Brien et al. 2006, p. 589), and plant
communities and forage resources in washes with water sources
[[Page 25603]]
do not differ from washes without water, providing no evidence that
water sources cause detrimental effects to Sonoran Desert plant
communities via herbivory or trampling by animals attracted to the
water (Marshal et al. 2006b, pp. 621-622). Construction of the five
water sources outside the pen and up to two water sources inside the
pen at Kofa NWR will have a disturbance footprint, but the acreage
affected is small (about 0.5 acre in total), and most of the
disturbance will be temporary. None of the water sources are proposed
in wilderness.
Monson (1968, pp. 67-68) found there was no hard evidence that
Sonoran pronghorn drink freestanding water; rather, he surmised they
obtained all the water they need from the plants they consume. However,
more recent work indicates they drink water, and that it is probably
crucial for survival during seasonal and long-term drought periods (Fox
et al. 2000; pp. 1-18; Morgart et al. 2005, pp. 57-58). Hervert et al.
(2005, p. 14) found that placement of water sources in palo verde-mixed
cacti associations, such as occur in King Valley of Kofa NWR, would
likely functionally convert them to higher quality habitats, in some
cases making them suitable for Sonoran pronghorn. This could be
especially important at Kofa NWR, where chain fruit cholla is absent,
but at Cabeza Prieta NWR, it is an important source of preformed or
dietary water for Sonoran pronghorn (Fox et al. 2000, pp. 1-18).
Currently existing developed and natural wildlife water sources within
Area A are primarily located in habitats that are not likely to be used
by Sonoran pronghorn or used only infrequently. For example, there are
no developed wildlife water sources in potential Sonoran pronghorn
habitat in King Valley. Creating new water sources for the
reestablished Sonoran pronghorn herd in Area A is important to the
success of the project. Sonoran pronghorn will benefit, with minimal
impacts to plant communities, other wildlife, and wilderness values.
(14) Comment: One commenter suggested that if Sonoran pronghorn
once inhabited the Chuckwalla Bench or East Mojave of California, then
the Mojave National Preserve should be considered as a reestablishment
site.
Our Response: Although the historical distribution of the Sonoran
pronghorn is not entirely known, none of the reports or publications we
have reviewed indicate the Sonoran pronghorn ranged into what is known
today as the Mojave National Preserve in California. Phelps and Webb
(1981, p. 21) show the historical distribution in California lying
entirely south of Interstate 10. The 1982 version of the recovery plan
(Service 1982, p. 2) adopted the distribution as interpreted by Hall
and Kelson (1959, p. 1023), which did not show the subspecies occurring
in California. However, Mearns (1907, p. 231) mentions observing
pronghorn tracks near ``Gardner's and Laguna stations'' in 1894 in the
Colorado Desert west of the Colorado River. Figure 2 in the 1998
recovery plan (Service 1998, p. 6) and in the 2002 revision (Service
2002, p. 17) show the historical distribution extending into California
north to the vicinity of Blythe and westward into an area that includes
the Chuckwalla Bench. Figure 1 of the 1998 plan extended the range
north to the vicinity of Parker Dam. The southern boundary of the
Mojave National Preserve is Interstate 40, which is no closer than 70
miles to Parker Dam.
We find no other reference suggesting Sonoran pronghorn occurred
historically any closer to the Mojave National Preserve than Parker
Dam. As a result, establishment of Sonoran pronghorn at the Preserve
will be outside of its historical distribution as we understand it.
Although section 10(j) of the Act does not limit experimental
populations to a species' historical range, the suitability of habitats
that are clearly outside of the historical range is questionable.
Moreover, our analysis of potential reestablishment sites was limited
to portions of the historical range in Arizona (O'Brien et al. 2005, p.
25); the suitability of the Mojave National Preserve as a potential
establishment site has not been evaluated. As a result, pursuing an
additional herd of Sonoran pronghorn at the Mojave National Preserve is
not a desired action at this time.
(15) Comment: One commenter supported the reestablishment proposal,
but believed it was inappropriate to allow hunting of Sonoran
pronghorn.
Our Response: Hunting of Sonoran pronghorn is currently prohibited
by section 9 of the Act. This designation of a NEP with a special rule
will not change that prohibition.
(16) Comment: Designation as a NEP implies that the proposed
release and subsequent establishment of an additional wild population
can fail completely without adverse consequence to the continued
existence of the species. This conclusion lacks scientific support;
thus the population should be given full protection under the Act or
designated as an experimental, essential population. Commenters also
note that agency authorized take under 10(j) rules can be abused to the
point of precluding recovery; a commenter cited the Mexican gray wolf
NEP designation as a case in point. Another commenter offered the
example of the NEP population of California condor in Arizona, which
they asserted is being used as an excuse not to limit lead ammunition
in the California condor recovery area.
Our Response: Because the establishment of a second Sonoran
pronghorn herd is identified as a downlisting criterion in the recovery
plan (Service 2002, p. 36), if such establishment failed, it would
adversely affect recovery. However, we do not believe the loss of the
experimental population would reduce appreciably the likelihood of the
survival of the species in the wild, which is why we are designating
the reestablished population as a nonessential experimental population.
The Sonoran pronghorn occurs in three other populations, including two
in Mexico and one in southern Arizona. Currently, the total in all
three populations is approximately 562 to 572 animals in the wild. As
described above under ``Recovery Efforts,'' a variety of aggressive
management actions have been to taken to avert catastrophic declines in
the U.S. population in the event of a drought. The first priority for
use of animals in the captive-breeding pen at Cabeza Prieta NWR is to
augment herds within the boundaries of the current range of the species
in the United States and Mexico; hence, any use of animals to establish
herds in Areas A or D would only be carried out after the needs of the
wild populations are met. For these reasons, and for further
justification for why reestablished Sonoran pronghorn herds are not
essential to the continued existence of the species, refer to the
section ``Status of Reestablished Populations.''
In regard to authorized take precluding recovery, the Sonoran
pronghorn population reestablishments are very different from that of
the Mexican gray wolf or California condor. As detailed in the special
rule, only take incidental to otherwise authorized activities plus
intentional take as necessary for translocation, aiding sick Sonoran
pronghorn, taking biological data, salvaging dead Sonoran pronghorn, or
affixing, removing, or servicing radio transmitters will be allowed. As
described in the sections ``Status of the Reestablished Populations''
and ``Management,'' we anticipate very little mortality or injury
associated with military, recreational, agricultural, and other uses in
the NEP that could potentially result in incidental take.
[[Page 25604]]
(17) Comment: The survival and growth of the NEP hinges on the good
faith and stewardship of the action agencies on whose land the NEP
resides. If agency commitments to conservation are not fulfilled, the
Service should reconsider the NEP designation and take whatever action
is necessary to ensure the recovery of Sonoran pronghorn. Conferring
under Section 7 is an opportunity to ensure the actions of Federal
agencies are consistent with recovery of the Sonoran pronghorn.
Our Response: The Service is dedicated to achieving the recovery of
the Sonoran pronghorn, which includes using all of our authorities to
achieve success in regard to reestablished Sonoran pronghorn
populations in Areas A and D. As we have discussed (see Regulatory
Background), we will work with Federal action agencies through the
section 7(a)(4) conference provisions of the Act in areas outside of
National Park and Wildlife Refuge lands, and via the section 7(a)(2)
consultation process where the NEP might be affected within Parks and
Refuges. Luke Air Force Base, which manages BMGR-E lands in Area D, has
been a consistent and strong partner in recovery of the Sonoran
pronghorn and has contributed millions of dollars to recovery. We fully
anticipate that they will continue to be a strong partner. Through the
development of the NEP proposal, we were and continue to be in close
contact with Yuma Proving Grounds, which manages lands in Area A and
has agreed to cooperate with us on this project. The BLM has pledged
its support, and furthermore has a policy of conferring with the
Service on activities that may affect proposed species, including NEPs.
Thus, their standard for conferring exceeds that in the regulations,
which only require conferring if a Federal action is likely to
jeopardize the continued existence of a proposed species or is likely
to result in adverse modification or destruction of proposed critical
habitat (50 CFR 402.10(a)).
Because of this support and cooperation, and as we anticipate
Sonoran pronghorn recovery will be compatible with current and future
activities within the NEP (see discussion under ``Management''), we
believe there will be no need to reconsider the NEP designation.
However, if at any time in the future the status of the wild
populations declines dramatically or other circumstances suggest that
the loss of reestablished populations would be likely to appreciably
reduce the likelihood of survival of the species in the wild, the
Service will reevaluate the NEP designation in accordance with our
policies and regulations. Furthermore, a comprehensive review,
assessment, and report of the reestablishment program by the Recovery
Team will occur at least every 5 years. If at any point the program is
not meeting its stated objective, or is falling short of meeting the
success criteria, all aspects of the program can be reevaluated and
modified as needed to better meet the recovery needs of the species.
(18) Comment: Because the legal status of Sonoran pronghorn will be
defined geographically (i.e., if they are in the NEP area they are part
of the NEP population; if they are outside the NEP, they are fully
protected under the Act), wild, endangered Sonoran pronghorn could lose
the majority of their protections simply by natural movements. If it
turns out that crossings by wild pronghorn into BMGR-E are occurring
and/or increasing, the Service should assess and potentially reconsider
the new populations' designation and requirements under section 10(j)
of the Act.
Our Response: As we have earlier discussed (see discussion under
``Reestablishment Areas''), we do not expect Sonoran pronghorn to cross
over the substantial barriers that separate the NEP area from the wild
herd. Only once or twice has a Sonoran pronghorn been known to cross
Highway 85 and its associated right-of-way fences into BMGR-E.
Released, pen-raised Sonoran pronghorn have a greater tendency to move
than do wild Sonoran pronghorn. We have also seen Sonoran pronghorn
make unusual movements in response to severe drought. However, the fact
remains that such crossings are rare. As the wild population continues
to recover and when a population becomes established in Area D, the
likelihood of pronghorn crossing Highway 85, both into or out of the
NEP, will probably increase. But because highways and their associated
right-of-way fences are nearly impermeable barriers for Sonoran
pronghorn (Brown and Ockenfels 2007, pg. 29), we do not anticipate more
than occasional lone animals moving across the highway, and the
occurrence of that will remain a rare event. However, if at any time in
the future the wild population and the NEP begin to intermingle because
of unexpected and common movement of Sonoran pronghorn across barriers
between those populations, the Service will reevaluate the NEP
designation in accordance with our policies and regulations.
(19) Comment: The wild and NEP populations should, at some point in
the future, be allowed to intermingle in order to maximize genetic
diversity and reduce possible effects from stochastic events. Linking
these habits and populations may be crucial for long-term survival of
the species.
Our Response: We acknowledge that allowing movement of Sonoran
pronghorn among populations increases the viability of those
populations and their likelihood of persistence over the long term.
However, accomplishing that is problematic logistically and
economically. The barriers that separate the NEP and wild populations
are not temporary structures. Interstate 8, canals, and the
agricultural and rural development that separate the current range from
pronghorn habitat in Area A are probably insurmountable barriers.
Overpasses or underpasses may be possible to allow movement of Sonoran
pronghorn across Highway 85, which separates the wild population from
the NEP in Area D; however, whether such a connection is feasible or
likely to be sufficiently successful to affect our expectation of very
infrequent intermingling is unknown at present.
(20) Comment: The assertion that U.S. Customs and Border Protection
operations pose a threat to the survival and recovery of Sonoran
pronghorn is inconsistent with the best scientific and commercial data.
Our Response: The proposed rule identified high levels of
undocumented immigration and drug trafficking across the international
border and associated law enforcement as a threat to the Sonoran
pronghorn. The proposed rule went on to say that the ``U.S. population
declined in 2002 by 83 percent to 21 animals (Bright and Hervert 2005,
p. 46). The Mexican populations declined at the same time, but not to
the same degree. The population southeast of Highway 8 declined by 18
percent, while the El Pinacate population declined by 26 percent. The
differences between the rates of decline north and south of the border
may be due to high levels of human disturbance on the United States
side primarily as a result of heightened levels of illegal immigration,
smuggling, and law enforcement response (Service 2008, p. 55)'' (75 FR
5735). Whether these activities pose a threat to the survival and
recovery of the Sonoran pronghorn has not been thoroughly addressed.
Recent analysis has shown there are about 8,000 miles of unauthorized
routes on the approximately 1,000-sq.-mi refuge, mostly in designated
wilderness. These are most likely attributable to both illegal cross-
border traffic and associated law enforcement response by Border Patrol
(McCasland 2010, pers. comm.). Furthermore, there is strong anecdotal
evidence suggesting
[[Page 25605]]
Sonoran pronghorn are avoiding areas of high cross-border traffic and
law enforcement response, including the Granite forage enhancement plot
and the pass near Bates Well (Service 2009, pp. 47-48). Border Patrol
presence deters illegal cross-border traffic, but that deterrence has a
substantial impact on its own (Milstead and Barnes 2002, pp. 87-88;
Neeley 2006, p. 9; Duncan et al. 2010, pp. 123-130). However, as Border
Patrol achieves operational control of the border region, we anticipate
that human disturbance will be reduced over time.
(21) Comment: Kofa NWR is much more likely to support a successful
reintroduction of Sonoran pronghorn than the area east of Highway 85
(Area D), which is a high-traffic area for human and narcotics
smuggling. Attempting a reestablishment in Area D is inconsistent with
the recovery plan, which specifies that a second, but not a third, U.S.
population is needed for downlisting.
Our Response: Although not ranked as high as Area A (which includes
Kofa NWR), Area D (including the area east of Highway 85) was ranked
second of the seven areas evaluated by the IDT as potential release
sites. The IDT believes Area D has good potential to support Sonoran
pronghorn, and the subspecies existed here historically, possibly into
the late 1980s (Service 1998, p. 9). Degree of disturbance, including
that caused by illegal cross-border traffic and Border Patrol, were
taken into account in the rankings of each area. Further, as discussed
in the above comment, we anticipate that both illegal immigration and
Border Patrol operations will lessen over time. The recovery plan
identifies establishment of a second U.S. herd as a criterion for
downlisting (Service 2002, p. 36); however, it does not suggest
population reestablishments should be limited to only one. Recovery
action 2 in the 1998 recovery plan is to ``establish and monitor new
separate herd(s)'' (Service 1998, p. 40). Replication of effort in
regard to population reestablishment is prudent in the event that
populations in Area A or Area D are not successful. The holding pen at
Area D will also serve as an outlet for excess pronghorn produced at
the captive rearing pen at Cabeza Prieta NWR. Production of animals for
release is expected to be more than 20 Sonoran pronghorn per year from
that pen (23 were released from the pen in December 2009). Once animals
are established at the pen at Kofa NWR, and as the wild herds are
bolstered by releases, fewer animals will be needed, allowing releases
to Area D. In addition, conditions such as drought within the current
range of the Sonoran pronghorn may make release of captively propagated
Sonoran pronghorn into the wild herd undesirable in some years. Area D
will provide another option for use of these excess animals. Also, the
ultimate goal of the Act is to delist the species, so it no longer
needs the protections of the Act. Additional populations beyond what is
being proposed in this action may be needed to achieve full recovery.
(22) Comment: The full effects of the rulemaking are not evaluated,
because the analysis in the EA is limited to Areas A and D, but the NEP
area is much larger, encompassing 10 million acres. For example, U.S.
Customs and Border Protection will be required to consult on its
activities at OPCNM east of Highway 85. Because of the scope and cost
of the effort, along with potential effects of a wide range of
activities, the proposed action appears to be a major Federal action
significantly affecting the human environment. The commenter encourages
the Service to limit the NEP to areas west of Highway 85.
Our Response: NEPA implementing regulations at 40 CFR 1508.9 define
an EA as: ``a concise public document for which a Federal agency is
responsible that serves to: (1) Briefly provide sufficient evidence and
analysis for determining whether to prepare an environmental impact
statement or a FONSI, (2) aid an agency's compliance with the Act when
no environmental impact statement is necessary, and (3) facilitate
preparation of an environmental impact statement when one is necessary.
The EA shall include brief discussions of the need for the proposal, of
alternatives as required by section 102(2)(E) of NEPA, of the
environmental impacts of the proposed action and alternatives, and a
listing of agencies and persons consulted'' (40 CFR 1508.9(b)).
Sonoran pronghorn pens, holding facilities, water sources, and
releases will all occur in Areas A and D, and are consistent with the
regulations cited above. Those are the areas on which the effects of
the alternatives were focused in the EA. Over time, and as populations
grow, Sonoran pronghorn could move outside of Areas A and D and
potentially to the boundaries of the NEP. In the event that Sonoran
pronghorn move to the boundaries of the NEP but not outside of it, the
effects of Sonoran pronghorn presence in these areas would be minimal
because of the NEP designation and the special rule that together
broadly allow Federal actions to go forward without section 7
consultations, and private actions that may result in incidental take
of the species will not require incidental take permits from the
Service. In National Parks and Wildlife Refuges, for the purposes of
section 7 only, the Sonoran pronghorn will be listed as a threatened
species, requiring consultations for actions that may affect the
species. However, we expect few if any changes would be needed in those
lands to comply with the Act (see ``Management''). Thus, based on our
EA we find that in no case do the effects of the action within Areas A
or D or within the NEP generally, rise to the level of significantly
affecting the human environment. A ``major Federal action'' includes
actions with effects that may be major and which are potentially
subject to Federal control and responsibility (40 CFR 1508.18). Due in
part to the regulatory relief provided by the NEP designation and
special rule, the effects of the action are not major as documented in
our FONSI.
The likelihood of Sonoran pronghorn moving into that portion of
Area D east of Highway 85 on OPCNM is low. The few Sonoran pronghorn
that have moved into that area have either died or not stayed there,
likely because of poor habitat quality. In any case, it is probably
more likely that wild Sonoran pronghorn would colonize that area from
west of Highway 85 than from the release site in Area D (see our
response to the third peer review comment). In that scenario, U.S.
Customs and Border Protection would need to consult on their activities
in that area affecting Sonoran pronghorn with or without the NEP
designation.
(23) Comment: During pen construction at Kofa NWR, any desert
tortoises or rosy boas found should be immediately translocated to a
release site agreed upon by the AGFD, Service, and BMGR.
Our Response: In the event that State-sensitive species, such as
rosy boas (Lichanura trivirgata) or desert tortoises (Gopherus
agassizii) are found during any phase of construction at either the
captive breeding pen at Kofa NWR or the holding pen at BMGR-E, they
will be relocated no more than 0.5 mi (0.8 km) away in the direction of
the most suitable and typical habitat for the species (rock outcrops or
rocky hillsides, and in the case of the tortoise, dissected washes with
caliche caves). If rosy boas are found during the day, they shall be
held temporarily in a climate-controlled environment (e.g., a cooler)
and released in the evening to prevent overheating.
(24) Comment: A commenter expressed concern that reestablishment at
Kofa NWR would interfere with the
[[Page 25606]]
hunting opportunities for bighorn sheep (Ovis canadensis) or other
species on the refuge. In particular, the commenter questions whether
areas of the refuge would be closed to public use during the Sonoran
pronghorn fawning season or whether areas currently open to bighorn
sheep hunting would be closed on Kofa NWR to protect Sonoran pronghorn.
Our Response: An area extending 0.25 mi (0.40 km) out from the
boundaries of the captive breeding pen at Kofa NWR will be closed to
the public. The pen will be in King Valley, in an area not frequented
by bighorn sheep, so it will have no impact on sheep hunting. No other
closures are needed or will be implemented at Kofa NWR to support the
Sonoran pronghorn reestablishment.
(25) Comment: A commenter inquired how a 10(j) designation could be
established on the BMGR when there are still Sonoran pronghorn in that
area.
Our Response: Areas west of Highway 85 and south of Interstate 8 on
the BMGR are not within the NEP. The wild herd, with the full
protections of the Act, occupies this area. Only those areas of BMGR-E
east of Highway 85 are in the NEP. Those areas are not currently
occupied by Sonoran pronghorn. Highway 85 and its right-of-way fence
provide a physical barrier to Sonoran pronghorn movement between the
wild population and the NEP (see discussion in ``Reestablishment
Areas'').
(26) Comment: One commenter asked if the NEP area is clearly
delineated from the area in which the wild, fully protected Sonoran
pronghorn occur, and if there is a chance of confusion in areas that
include both NEP and fully protected Sonoran pronghorn (e.g., BMGR).
Furthermore, the commenter asked if a potential exists for incidental
take of Sonoran pronghorn occurring in the current range due to its
close proximity to the NEP.
Our Response: The boundaries of the NEP are clearly delineated by
major highways, the Colorado River, and an international border. Where
the NEP adjoins the area occupied by the wild population, the boundary
between the two includes Interstate 8 (boundary with Area A) and
Highway 85 (boundary with Area D). Because of those clear boundaries,
the likelihood of confusing wild and NEP Sonoran pronghorn is low,
because the status of each is determined geographically. Designation of
the NEP adjacent to the current range alters neither the likelihood of
incidental take, nor the activities that could result in incidental
take of Sonoran pronghorn in the wild herd.
(27) Comment: No sufficient or verifiable evidence exists to show
that Kofa NWR or any areas north of the Gila River are within the
historical range of the Sonoran pronghorn. Hence, establishing a
population of pronghorn at Kofa NWR is inappropriate.
Our Response: The commenter provides much supporting information
that brings into question whether Sonoran pronghorn ever occupied King
Valley or other portions of Kofa NWR. We acknowledge that delineating
the historical range of the Sonoran pronghorn is problematic because of
a lack of specimens in key areas; the anecdotal nature of sightings, of
which some of the most relevant are very old; and taxonomic
uncertainty--the Mexican pronghorn occurs elsewhere in southern
Arizona. The uncertainty in defining historical range is reflected in
the prior and current Sonoran pronghorn recovery plans. The 1982 plan,
adopting the range as described by Hall and Kelson (1959, p. 1023), did
not show the range of the Sonoran pronghorn north of Ajo, which is well
south of the Gila River (Service 1982, p. 2). The 1998 and 2002
versions of the recovery plan adopted a more expansive view of
historical range first exposed by Phelps and Webb (1981, p. 21); this
later view included Kofa NWR. Phelps and Webb (1981, p. 22) provide
evidence of Sonoran pronghorn on the Harquahala Plain in the 1850s,
northeast of Kofa NWR, and along the Gila River in 1852, south of the
Kofa NWR. As shown in the 2002 supplement and amendment to the recovery
plan (Service 2002, p. 17), based on the best scientific and commercial
information available, the Sonoran pronghorn recovery team and the
Service believe Kofa NWR is within the historical range of the
subspecies.
(28) Comment: Yuma Proving Grounds is not going to ignore their
mission and cease firing if Sonoran pronghorn are in their artillery
footprint. Yuma Proving Grounds could bomb herds of expensively reared
Sonoran pronghorn, and military operations may alter behavior and
physiology of the species. No protocols are in place at Yuma Proving
Grounds to minimize death or injury of Sonoran pronghorn. This is a
moral issue that must not be overlooked, as well as an additional
financial loss of valuable animals.
Our Response: Specific capabilities at Yuma Proving Grounds include
testing of artillery; mortars; mines; ground and aircraft weapons;
target acquisition and fire control systems; wheeled and tracked
vehicles; and air delivery material, equipment, and techniques.
Primarily artillery and tank testing activities occur on the Kofa Range
portion of Yuma Proving Grounds, which lies directly south of Kofa NWR
and is the portion of Yuma Proving Grounds most likely to be colonized
by Sonoran pronghorn. We acknowledge that military activities at Yuma
Proving Grounds may result in some mortality and injury of Sonoran
pronghorn (see discussion in ``Status of Proposed Population'').
However, similar to BMGR-E, the vast majority of the Kofa Range portion
of Yuma Proving Grounds is relatively undisturbed. The likelihood of a
Sonoran pronghorn being hit by an artillery shell or shrapnel,
colliding with a vehicle, or encountering lethal or injurious hazards
is very small. At BMGR-E, no Sonoran pronghorn have ever been
documented to have been killed or injured by military activities. Luke
Air Force Base implements protocols to ensure that Sonoran pronghorn
are not harmed on the live fire Tactical Ranges, but even before those
protocols were put in place in 1997, no Sonoran pronghorn were ever
known to have been killed or injured on the BMGR as a result of
military activities. There is no evidence to suggest, nor do we
anticipate, that military activities at Yuma Proving Grounds will
compromise the recovery efforts for the Sonoran pronghorn in Area A.
(29) Comment: One commenter questioned the timeline in the EA,
which had the construction of the captive pen at Kofa NWR beginning in
spring of 2010.
Our Response: Implementation of the action will not begin until
after publication of this rule and the signing of the FONSI.
(30) Comment: Creating irrigated forage enhancement plots in King
Valley at Kofa NWR will exacerbate nonnative, invasive plant problems.
In particular, the nonnative Sahara mustard (Brassica tournefourtii)
and Mediterranean grass (Schismus sp.) are likely to increase.
Our Response: We acknowledge that irrigating the desert will cause
increased growth of plants, including nonnative species such as Sahara
mustard and Mediterranean grass. We propose irrigated areas to enhance
forage within the captive pen at Kofa NWR. No forage enhancement plots
are proposed outside the captive pen. Although we have not surveyed the
pen site for Sahara mustard or Mediterranean grass, both almost
certainly occur there. Mediterranean grass is likely ubiquitous. Sahara
mustard achieves its greatest densities in fine, sandy soils, but still
occurs on bajadas and in gravelly soils such as occurs at the pen site.
Both species thrive in disturbed
[[Page 25607]]
sites; hence, hoof action from Sonoran pronghorn may further enhance
populations of these nonnatives. That said, these species have not
increased noticeably in forage enhancement plots at Cabeza Prieta NWR,
including inside the captive breeding pen. The plant communities and
soils are similar between the forage plots at Cabeza Prieta and at the
pen site in Kofa NWR, so we have no reason to believe these species
will respond any differently at Kofa NWR. Furthermore, the fencing and
visual screening on the perimeter of the pen at Kofa NWR will likely
reduce spread of seed from Sahara mustard and Mediterranean grass to
areas outside the pen. Consistent with our monitoring and adaptive
management plan, if our actions create a nonnative invasive plant
problem, we will evaluate that problem and take appropriate action to
correct it.
(31) Comment: In comments provided on the Environmental Assessment,
the U.S. Customs and Border Protection strongly encouraged limiting
reestablishment to Area A (Kofa) due to concerns that the experimental
population might impede border security operations.
Our Response: The Service and the Recovery Team believe that it is
important to efforts to conserve the Sonoran pronghorn to have two
population centers within the experimental area. Based on our
evaluation of possible reintroduction sites, Kofa (Area A) and BMGR-
East (Area D) have the best combination of size, forage availability,
water availability, fragmentation, disturbance, logistics, and other
factors and that is why we have chosen those two areas. Release of
animals into BMGR-East would only occur after we have achieved strongly
positive results from our efforts at Kofa and we have surplus animals
from Cabeza Prieta and Kofa that could be placed in BMGR-East. We do
not anticipate reaching that point for at least 5 years and probably
longer. The Service is committed to coordinating closely with U.S.
Customs and Border Protection and other partners before implementing
release of Sonoran pronghorns into BMGR-East so as to limit any
potentially adverse effects to operations and activities of U.S.
Customs and Border Protection and our other partners. We have added
language to the text of the regulation clarifying that incidental take
caused by border security and enforcement carried out by Federal law
enforcement officials (e.g., U.S. Customs and Border Protection) would
not be prohibited.
Finding
We followed the procedures required by the Act, NEPA, and the
Administrative Procedure Act during this Federal rulemaking process.
Therefore, we solicited public and peer-review comments on the proposed
NEP designation. As required by law, we have considered all comments
received on the proposed rule and draft EA before making this final
determination. Based on the above information, and using the best
scientific and commercial data available (in accordance with 50 CFR
17.81), we find that creating an NEP of Sonoran pronghorn and releasing
them into the NEP area in Kofa NWR of Area A and BMGR-E of Area D will
further the conservation of the species.
Administrative Change to 50 CFR 17.84
We are making a nonsubstantive change to correct a paragraph
designation error in 50 CFR 18.74(u), the nonessential experimental
population rule for Rio Grande silvery minnow. In that rule, there are
four subparagraphs, numbered (1) through (4). Paragraph (u)(4) is
further broken down into three subparagraphs. According to the correct
format for the Code of Federal Regulations, these subparagraphs should
be designated as paragraphs (i) through (iii). However, they are
erroneously designated as paragraphs (a) through (c). We are making
this correction as part of this final rule.
Required Determinations
Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order 12866 (E.O. 12866). OMB bases its determination upon the
following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. SBREFA amended the
Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities. We are certifying that this rule will not have a significant
economic effect on a substantial number of small entities. The
following discussion explains our rationale.
The area affected by this rule includes an area north of Interstate
8, east of the Colorado River, and west of Interstates 10 and 19; and
an area south of Interstate 8, east of Highway 85, and west of
Interstates 10 and 19. Because of the substantial regulatory relief
provided by NEP designations, we do not expect this rule to have any
significant effect on recreational, agricultural, ranching, military,
or other activities within the NEP area. In addition, when NEPs are
located outside a National Wildlife Refuge or unit of the National Park
System, we treat the population as a species proposed for listing for
the purposes of Section 7 and only two provisions apply: Section
7(a)(1) and section 7(a)(4). In these instances, NEPs provide
additional flexibility because Federal agencies are not required to
consult with us under section 7(a)(2). Section 7(a)(1) requires Federal
agencies to use their authorities to carry out programs to further the
conservation of listed species. Section 7(a)(4) requires Federal
agencies to confer (rather than consult) with the Service on actions
that are likely to jeopardize the continued existence of a proposed
species.
The BLM has a policy (BLM 6840 Manual) of conferring on activities
that may adversely affect proposed species. The results of a conference
are advisory in nature and do not restrict agencies from carrying out,
funding, or authorizing activities. The section
[[Page 25608]]
7(a)(2) requirements will apply if Sonoran pronghorn may be affected by
Federal activities within National Wildlife Refuges and National Park
Service units in the NEP; however, we do not anticipate any significant
changes to management because these areas are already managed in a way
that will promote recovery of the Sonoran pronghorn. The principal
activities on private property in the NEP are agriculture, ranching,
rural living, and recreation. We believe the presence of the Sonoran
pronghorn will not affect the use of private or tribal lands for these
purposes because there will be no new or additional economic or
regulatory restrictions imposed upon States, non-Federal entities, or
members of the public due to the presence of the Sonoran pronghorn.
This rule authorizes incidental take of Sonoran pronghorn within
the NEP area outside of National Wildlife Refuges and National Park
Service units. The regulations implementing the Act define ``incidental
take'' as take that is incidental to, and not the purpose of, carrying
out of an otherwise lawful activity such as military training,
livestock grazing, recreation, and other activities that are in
accordance with Federal, tribal, state, and local laws and regulations.
Intentional take for purposes other than aiding sick, injured, or
orphaned Sonoran pronghorn; collection of biological data; or other
conservation purposes as described in the special rule at the end of
this document are not authorized unless for research or educational
purposes, which would require a recovery permit under section
10(a)(1)(a) of the Act.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
a. On the basis of information contained in the ``Regulatory
Flexibility Act'' section above, this rule will not ``significantly or
uniquely'' affect small governments. We have determined and certify
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq.,
that this rulemaking will not impose a cost of $100 million or more in
any given year on local or State governments or private entities. A
Small Government Agency Plan is not required. As explained above, small
governments will not be affected because the NEP designation will not
place additional requirements on any city, county, or other local
municipalities.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year (i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act). This NEP designation
for the Sonoran pronghorn will not impose any additional management or
protection requirements on the states or other entities.
Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. When reestablished populations of
federally listed species are designated as NEPs, the Act's regulatory
requirements regarding the reestablished listed species within the NEP
are significantly reduced. Section 10(j) of the Act and the
accompanying special rule can provide regulatory relief with regard to
the taking of reestablished species within an NEP area. For example,
with the exception of actions on National Wildlife Refuge or National
Park Service lands within the NEP, this rule allows for the taking of
reestablished Sonoran pronghorn when such take is incidental to an
otherwise legal activity, such as military training and testing,
agriculture, rural and urban development, livestock grazing, camping,
hiking, hunting, recreational vehicle use, sightseeing, nature or
scientific study, rockhounding, and geocaching; or other activities
that are in accordance with applicable tribal, Federal, State, and
local laws and regulations. Because of the substantial regulatory
relief provided by NEP designations, we do not believe the
reestablishment of this species will conflict with existing or proposed
human activities or hinder public use of lands within the NEP.
A takings implication assessment is not required because this rule
(1) will not effectively compel a property owner to suffer a physical
invasion of property and (2) will not deny all economically beneficial
or productive use of the land or aquatic resources. This rule
substantially advances a legitimate government interest (conservation
and recovery of a listed species) and does not present a barrier to all
reasonable and expected beneficial use of private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this rule has significant Federalism effects and have
determined that a Federalism assessment is not required. This rule will
not have substantial direct effects on the States, on the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
In keeping with Department of the Interior policy, we requested
information from and coordinated development of this rule with the
affected resource agencies in Arizona. The AGFD has been a key
participant in the recovery program for the Sonoran pronghorn,
including serving on the IDP that helped develop the reestablishment
proposal. Achieving the recovery goals for this species will contribute
to its eventual delisting and its return to State management. No
intrusion on State policy or administration is expected, roles or
responsibilities of Federal or State governments will not change, and
fiscal capacity will not be substantially or directly affected. The
special rule operates to maintain the existing relationship between the
State and the Federal Government and is being undertaken in
coordination with the State of Arizona. Therefore, this rule does not
have significant Federalism effects or implications to warrant the
preparation of a Federalism Assessment under the provisions of
Executive Order 13132.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988 (February 7, 1996; 61 FR
4729), the Office of the Solicitor has determined that this rule will
not unduly burden the judicial system and will meet the requirements of
sections (3)(a) and (3)(b)(2) of the Order.
Government-to-Government Relationship With Tribes
In accordance with Secretarial Order 3206 (American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act) (June 5, 1997); the President's memorandum of April 29,
1994, Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951); Executive Order 13175; and the Department of
the Interior's requirement at 512 DM 2, we have notified the Native
American Tribes within and adjacent to the NEP area about the proposed
and final rule. They have been advised through written contact,
including informational mailings from the Service, and were provided an
opportunity to comment on the draft EA and proposed rule. No comments
were received from Tribes on these documents. If future activities
resulting from this rule may affect Tribal resources, the Service will
communicate and consult on a Government-to-Government basis with any
affected Native American Tribes in order to find a mutually agreeable
solution.
[[Page 25609]]
Paperwork Reduction Act
Office of Management and Budget (OMB) regulations at 5 CFR part
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. The Office of
Management and Budget has approved our collection of information
associated with reporting the taking of experimental populations and
assigned control number 1018-0095. We may not collect or sponsor, and
you are not required to respond to, a collection of information unless
it displays a currently valid OMB control number.
National Environmental Policy Act
We have prepared an EA and FONSI, as defined under the authority of
NEPA. It is available from the Arizona Ecological Services Field
Office, 2321 West Palm Royal Road, Suite 103, Phoenix, AZ 85021, or
from our Web site at http://www.fws.gov/southwest/es/arizona/ or on
www.regulations.gov under Docket No. FWS-R2-ES-2009-0077.
Energy Supply, Distribution or Use (E.O. 13211)
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This rule is not
expected to significantly affect energy supplies, distribution, and
use. Because this action is not a significant energy action, no
Statement of Energy Effects is required.
References Cited
A complete list of all references cited in this rule is available
upon request from the Arizona Ecological Services Field Office (see
ADDRESSES section).
Authors
The primary authors of this rule are staff of the Arizona
Ecological Services Field Office (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Final Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
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.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Pronghorn,
Sonoran'' under ``MAMMALS'' in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
* * * * * * *
Pronghorn, Sonoran............... Antilocapra U.S.A. (AZ), Mexico Entire, except E 1, 3 NA NA
americana where listed as an
sonoriensis. experimental
population.
Pronghorn, Sonoran............... Antilocapra U.S.A. (AZ), Mexico In Arizona, an area XN 782 NA 17.84(v)
americana north of
sonoriensis. Interstate 8 and
south of
Interstate 10,
bounded by the
Colorado River on
the west and
Interstate 10 on
the east; and an
area south of
Interstate 8,
bounded by Highway
85 on the west,
Interstates 10 and
19 on the east,
and the U.S.-
Mexico border on
the south.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.84 by redesigning paragraphs (u)(4)(a) through
(u)(4)(c) as paragraphs (u)(4)(i) through (iii) and by adding a new
paragraph (v) to read as follows:
Sec. 17.84 Special rules--vertebrates.
* * * * *
(v) Sonoran pronghorn (Antilocapra americana sonoriensis).
(1) The Sonoran pronghorn (Antilocapra americana sonoriensis)
population identified in paragraph (v)(12) of this section is a
nonessential experimental population (NEP).
(2) No person may take this species, except as provided in
paragraphs (v)(3) through (v)(6) of this section.
(3) Any person with a valid permit issued by the U.S. Fish and
Wildlife Service under Sec. 17.32 may take pronghorn within the NEP
area for scientific purposes, the enhancement of
[[Page 25610]]
propagation or survival of the species, and other conservation purposes
consistent with the Endangered Species Act.
(4) A Sonoran pronghorn may be taken within the boundaries of Yuma
Proving Grounds; Barry M. Goldwater Range; lands of the Arizona State
Land Department; Bureau of Land Management lands; privately owned
lands; and lands of the Tohono O'odham Nation, Colorado River Indian
Tribes, Gila River Indian Reservation, Ak-Chin Indian Reservation,
Pascua Yaqui Indian Reservation, and San Xavier Reservation within the
NEP area, provided that such take is incidental to, and not the purpose
of, carrying out any otherwise lawful activity; and provided that such
taking is reported as soon as possible in accordance with paragraph
(v)(6) of this section. Otherwise lawful activities are any activities
in compliance with applicable land management regulations, hunting
regulations, tribal law, and all other applicable law and regulations,
and include, but are not limited to, military training and testing,
border security and enforcement carried out by Federal law enforcement
officials (e.g., U.S. Customs and Border Protection), agriculture,
rural and urban development, livestock grazing, camping, hiking,
hunting, recreational vehicle use, sightseeing, nature or scientific
study, rockhounding, and geocaching, where such activities are
permitted.
(5) Any employee or agent of the U.S. Fish and Wildlife Service,
the Arizona Department of Game and Fish, and the tribes listed in
paragraph (v)(4) of this section, who is designated for such purpose
may, when acting in the course of official duties, take a Sonoran
pronghorn if such action is necessary to:
(i) Aid a sick, injured, or orphaned Sonoran pronghorn, including
rescuing such animals from canals;
(ii) Dispose of a dead Sonoran pronghorn specimen, or salvage a
dead specimen that may be useful for scientific study;
(iii) Move a Sonoran pronghorn for genetic purposes or to improve
the health of the population; or
(iv) Capture and release a Sonoran pronghorn for relocation, to
collect biological data, or to attach, service, or detach radio-
telemetry equipment.
(6) Any taking pursuant to paragraphs (v)(3) through (v)(5) of this
section must be reported as soon as possible by calling the U.S. Fish
and Wildlife Service, Arizona Ecological Services Office, 201 N Bonita
Avenue, Suite 141, Tucson, AZ 85745 (520/670-6150), or the Cabeza
Prieta National Wildlife Refuge, 1611 North Second Avenue, Ajo, AZ
85321 (520/387-6483). Upon contact, a determination will be made as to
the disposition of any live or dead specimens.
(7) No person may possess, sell, deliver, carry, transport, ship,
import, or export by any means whatsoever, any Sonoran pronghorn or
Sonoran pronghorn parts taken in violation of these regulations.
(8) It is unlawful for any person to attempt to commit, solicit
another to commit, or cause to be committed, any offense defined in
paragraphs (v)(2) and (7) of this section.
(9) The boundaries of the designated NEP area are based on the
maximum estimated range of pronghorn that are released in and become
established within the NEP area. These boundaries are physical barriers
to movements, including major freeways and highways, and the Colorado
River. All release sites will be within the NEP area.
(i) All Sonoran pronghorn found in the wild within the boundaries
of the NEP area will be considered members of the NEP. Any Sonoran
pronghorn occurring outside of the NEP area are considered endangered
under the Act.
(ii) The Service has designated the NEP area to accommodate the
potential future movements of wild Sonoran pronghorn. All released
Sonoran pronghorn and their progeny are expected to remain in the NEP
area due to the geographical extent of the designation and substantial
barriers to movement that form the boundaries of the NEP.
(10) The NEP will be monitored closely for the duration of the
program. Any pronghorn that is determined to be sick, injured, or
otherwise in need of special care will be recaptured to the extent
possible by Service and/or State or Tribal wildlife personnel or their
designated agent and given appropriate care. Such pronghorn will be
released back to the wild as soon as possible, unless physical or
behavioral problems make it necessary to return them to a captive-
breeding facility.
(11) The Service plans to evaluate the status of the NEP every 5
years to determine future management status and needs, with the first
evaluation occurring not more than 5 years after the first release of
pronghorn into the NEP area. All reviews will take into account the
reproductive success and movement patterns of individuals released,
food habits, and overall health of the population. This evaluation will
include a progress report.
(12) The areas covered by this proposed nonessential experimental
population designation are in Arizona. They include the area north of
Interstate 8 and south of Interstate 10, bounded by the Colorado River
on the west and Interstate 10 on the east, and an area south of
Interstate 8, bounded by Highway 85 on the west, Interstates 10 and 19
on the east, and the U.S.-Mexico border on the south.
(13) Note: Map of the NEP area for the Sonoran pronghorn in
southwestern Arizona follows:
BILLING CODE 4310-55-P
[[Page 25611]]
[GRAPHIC] [TIFF OMITTED] TR05MY11.128
BILLING CODE 4310-55-C
Dated April 19, 2011.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-10467 Filed 5-4-11; 8:45 am]
BILLING CODE 4310-55-P