[Federal Register: March 9, 2004 (Volume 69, Number 46)]
[Proposed Rules]               
[Page 10956-10971]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT61

Endangered and Threatened Wildlife and Plants; Regulations for 
Nonessential Experimental Populations of the Western Distinct 
Population Segment of the Gray Wolf

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service) propose 
regulations for the nonessential experimental populations of the 
western distinct population segment (DPS) of the gray wolf (Canis 
lupus). In addition, we propose regulations so that States with wolf 
management plans approved by the Service can apply for additional 
authorities to manage wolves consistent with those approved plans. 
These proposed regulations would only have effect in States that have 
an approved State management plan for gray wolves. Within the western 
DPS of the gray wolf, only the States of Idaho and Montana have 
approved State management plans for gray wolves; the State of Wyoming 
has prepared a wolf management plan which was not approved by the 
Service; therefore, if finalized, these regulatory changes would not 
affect existing wolf management in Wyoming. As we discussed in our 
advance notice of proposed rulemaking regarding delisting the western 
DPS of the gray wolf, once all the States have approved wolf management 
plans, we intend to propose removing the western DPS from the List of 
Endangered and Threatened Vertebrates. This proposed rule would also 
not affect the eastern DPS or the southwestern DPS of the gray wolf.

DATES: Comments on this proposed rule must be received by May 10, 2004. 
Public hearings will be scheduled for Boise, ID, and Helena, MT, during 
the comment period (see ``Public Hearings'' in the SUPPLEMENTARY 
INFORMATION section). Requests for additional public hearings must be 
received by April 8, 2004.

ADDRESSES: U.S. Fish and Wildlife Service, Western Gray Wolf Recovery 
Coordinator, 100 N. Park, 320, Helena, MT 59601. Comments on 
this proposed rule may be sent to this address, or by electronic mail 
to WesternGrayWolf@fws.gov. If you submit comments by e-mail, please 
submit them as an ASCII file and avoid the use of special characters 
and any form of encryption. Please also include ``Attn: RIN 1018-AT61'' 
and your name and return address in your e-mail message. If you do not 
receive a confirmation from the system that we have received your e-
mail message, contact us directly by calling our Helena office at 
telephone number 406-449-5225.

FOR FURTHER INFORMATION CONTACT: Ed Bangs, Western Gray Wolf Recovery 
Coordinator, at telephone number 406-449-5225, ext. 204.



    On April 1, 2003, we published in the Federal Register (69 FR 
15879) an advance notice of proposed rulemaking that announced our 
intention to propose rulemaking under the Endangered

[[Page 10957]]

Species Act of 1973, as amended (Act), to remove the western distinct 
population segment (DPS) of the gray wolf (Canis lupus) from the List 
of Endangered and Threatened Wildlife in the near future. At the time, 
we indicated that the numbers of wolves in the western DPS had exceeded 
our recovery goals; we reported that, at the end of 2001, 563 wolves 
could be found in 34 packs in the northern U.S. Rockies. We also 
emphasized the importance of State and tribal wolf management plans to 
our delisting decision; we believe these plans will be the major 
determinants of wolf protection and prey availability, and will set and 
enforce limits on human utilization and other forms of taking, once the 
wolf is delisted. In short, these State and tribal management plans 
will determine the overall regulatory framework for the future 
conservation of gray wolves after delisting. For reasons we discuss in 
more detail below, we are not yet prepared to propose delisting the 
western DPS of gray wolves; here, we propose new regulations for the 
nonessential experimental populations of the western DPS of gray wolves 
that are found in States with Service-approved State wolf management 
    Gray wolf (Canis lupus) populations were eliminated from Montana, 
Idaho, and Wyoming, as well as adjacent southwestern Canada, by the 
1930s (Young and Goldman 1944). After human-caused mortality of wolves 
in southwestern Canada was regulated in the 1960s, populations expanded 
southward (Carbyn 1983). Dispersing individuals occasionally reached 
the northern Rocky Mountains of the United States (Ream and Mattson 
1982, Nowak 1983), but lacked legal protection there until 1974 when 
they were listed as endangered.
    Section 10(j) of the Act gives the Secretary of the Interior the 
authority to designate populations of listed species that are 
reintroduced outside their current range, but within their probable 
historical range, as ``experimental populations'' for the purposes of 
promoting the recovery of those species by establishing additional wild 
populations. Such a designation increases our flexibility in managing 
reintroduced populations, because experimental populations are 
generally treated as threatened species under the Act. Threatened 
status, in comparison to endangered status, allows the promulgation of 
special regulations to further promote the conservation of the species.
    Furthermore, the Secretary is authorized to designate experimental 
populations as ``nonessential'' if they are determined to be not 
essential to the continued existence of the species. For the purposes 
of section 7(a)(2) of the Act (Interagency Cooperation), nonessential 
experimental populations, except where they occur within areas of the 
National Wildlife Refuge System or the National Park System, are 
treated as species proposed to be listed as threatened or endangered 
species, rather than as a listed species.
    In 1994, we promulgated special regulations under Section 10(j) of 
the Act for the purposes of wolf reintroduction. Those regulations, 
codified at 50 CFR 17.84(i), established two non-essential experimental 
populations, the central Idaho non-essential experimental population 
area and the Yellowstone non-essential experimental population area, 
and were meant to address the potential negative impacts or concerns 
regarding wolf reintroduction.
    Since reintroduction began in 1994, wolf populations in both 
experimental areas have exceeded expectations. This success has 
prompted the Service to upgrade the current status of gray wolves, 
outside of the experimental populations, to threatened; we also 
published an advance notice of proposed rule making indicating our 
intention to delist the western DPS of gray wolves in the near future 
(68 FR 15879). However, this reclassification had no effect on the 
status of the experimental populations in Idaho or Yellowstone, which 
were already treated as threatened.
    In the preamble to the 1994 regulations where we established the 
nonessential experimental populations, we also identified protective 
measures and management practices necessary for the populations' 
conservation and recovery. As wolves in the nonessential experimental 
populations are treated as a threatened species, these regulations 
provided additional flexibility in managing wolf populations within the 
experimental population areas compared to outside, where wolves were 
listed as endangered. In 2003, however, when we reclassified wolves in 
the western DPS as threatened, we also published special regulations 
(found in 50 CFR 17.40(n)) that provided more flexible management for 
the species outside the experimental population areas.
    The rule we adopted in 2003, however, did not apply within the 
experimental population areas; as a result, State wolf management is 
currently more flexible outside the experimental population areas. We 
now propose, under this rule, regulations at 50 CFR 17.84, for States 
with Service-approved State wolf management plans only, that would 
adopt similar provisions which expand allowable management for the 
experimental population areas, providing more consistent management 
rules both inside and outside experimental population areas. In 
addition, these proposed regulations also provide for the transition 
from the provisions of this rule to those provisions of Service-
approved State wolf management plans consistent with federal 
regulations for nonessential experimental wolves within the boundaries 
of the State, with the exception of lands managed by the National Park 
Service and the Fish and Wildlife Service. This change would provide 
States with much of the flexibility in wolf management now limited to 
the Service, but only where the Secretary has already determined that 
the State's wolf management would be consistent with the protections 
already provided to wolves under the Act. For States without approved 
management plans the existing regulations are retained.

Previous Federal Actions

    The northern Rocky Mountain wolf (Canis lupus irremotus) was listed 
as endangered in Montana and Wyoming in the first list of species that 
were protected under the 1973 Act, published in May 1974 (USDI 1974). 
To eliminate problems with listing separate subspecies of the gray wolf 
and identifying relatively narrow geographic areas in which those 
subspecies are protected, on March 9, 1978, we published a rule (43 FR 
9607) relisting the gray wolf at the species level (Canus lupus) as 
endangered throughout the conterminous 48 States and Mexico, except 
Minnesota, where the gray wolf was reclassified to threatened. In 
addition, critical habitat was designated in that rulemaking.
    On November 22, 1994, we designated areas in Idaho, Montana, and 
Wyoming as nonessential experimental populations in order to initiate 
gray wolf reintroduction projects in central Idaho and the Greater 
Yellowstone area (59 FR 60252, 59 FR 60266). These experimental 
population designations also contain special regulations that govern 
the take of wolves within the geographical areas (codified at 50 CFR 
17.84(i)). The rules governing these experimental populations allowed 
for incremental increases in the authority of States to manage the 
wolves under a State management plan approved by the Service. 
Specifically, the rules allowed States to define livestock for purposes 
of managing conflicts between wolves and livestock, and the rule also 

[[Page 10958]]

States to document adverse effects of wolves on ungulates for the 
purposes of managing conflicts in this regard.
    In January 1995, fifteen young adult wolves captured in Alberta, 
Canada, were released in central Idaho. During January 1996, an 
additional twenty wolves from British Columbia were released into the 
central Idaho experimental population area. In March 1995, fourteen 
wolves from Alberta, representing three family groups were released in 
Yellowstone National Park. In April 1996, this procedure was repeated 
with seventeen wolves from British Columbia.
    On January 12, 1998, we established a third nonessential 
experimental population area to reintroduce the Mexican gray wolf into 
its historical habitat in the southwestern States (63 FR 1752).
    We received several petitions during the past decade requesting 
consideration to delist the gray wolf in all or part of the 48 
conterminous States. We subsequently published findings that these 
petitions did not present substantial information that delisting gray 
wolves in all or part of the conterminous 48 States may be warranted 
(54 FR 16380, April 24, 1989; 55 CFR 48656, November 30, 1990; 63 FR 
55839, October 19, 1998).
    On July 13, 2000, we published a proposal (65 FR 43450) to revise 
the current listing of the gray wolf across most of the conterminous 
United States. On April 1, 2003, we published a final rule establishing 
three DPSs (Western, Eastern, and Southwestern) and reclassifying the 
gray wolf from endangered to threatened in the Western and Eastern DPSs 
except where nonessential experimental populations existed (68 FR 
15804). We also established special regulations under section 4(d) of 
the Act for the reclassified DPSs. Also on April 1, 2003, we published 
two Advance Notices of Proposed Rulemaking announcing our intent to 
delist the gray wolf in the Eastern (68 FR 15876) and Western (68 FR 
15879) DPSs at some point in the future.

Recovery Goals

    Current population figures from the Service indicate that the 
experimental populations within central Idaho and Yellowstone have 
exceeded current recovery goals (30 packs well-distributed in recovery 
areas). In 2002, the Service published population figures for the gray 
wolf, which indicate there were between 650 to 700 wolves in about 41 
breeding pairs equitably distributed throughout Montana (about 120 
wolves in 13 breeding packs), Idaho (about 285 wolves in 10 breeding 
packs), and Greater Yellowstone (270 wolves in 18 breeding packs). 2002 
was the third year that the wolf population in the northern Rocky 
Mountains has had thirty or more breeding pairs.

Currently Designated Nonessential Experimental Populations of Gray 

    The Secretary has designated three nonessential experimental 
population areas for the gray wolf, and wolves have subsequently been 
reintroduced into these areas. These nonessential experimental 
population areas are the Yellowstone Nonessential Experimental 
Population Area, the Central Idaho Nonessential Experimental Population 
Area, and the Mexican Wolf Nonessential Experimental Population Area. 
The first two of these are intended to further the recovery of gray 
wolves in the northern U.S. Rocky Mountains, and the third is part of 
our Mexican wolf recovery program, as described in their respective 
recovery plans (Service 1982, 1987).
    The Yellowstone Experimental Population Area consists of that 
portion of Idaho east of Interstate Highway 15; that portion of Montana 
that is east of Interstate Highway 15 and south of the Missouri River 
from Great Falls, Montana, to the eastern Montana border; and all of 
Wyoming (59 FR 60252; November 22, 1994). However, as explained below, 
the new regulations proposed here will not apply in Wyoming.
    The Central Idaho Experimental Population Area consists of that 
portion of Idaho that is south of Interstate Highway 90 and west of 
Interstate 15; and that portion of Montana south of Interstate 90, west 
of Interstate 15, and south of Highway 12 west of Missoula (59 FR 
60266; November 22, 1994).
    A third similar nonessential experimental population area was 
established to reintroduce the Mexican gray wolf into its historical 
habitat in the southwestern States. The Mexican Gray Wolf Nonessential 
Experimental Population Area consists of that portion of Arizona lying 
south of Interstate Highway 40 and north of Interstate Highway 10; that 
portion of New Mexico lying south of Interstate Highway 40 and north of 
Interstate Highway 10 in the west and north of the Texas-New Mexico 
border in the east; and that part of Texas lying north of U.S. Highway 
62/180 (63 FR 1752; January 12, 1998).
    This proposed rule will not affect the Mexican Gray Wolf 
Nonessential Experimental Population, nor will it affect the existing 
special regulations that apply to it.

Current Special Regulations for the Western DPS

    Two different special regulations currently apply to the Western 
    In 1994, the Service established special regulations found at 
17.48(i) for these two experimental populations allow flexible 
management of wolves, including authorization for private citizens to 
take wolves in the act of attacking livestock on private land. These 
rules also provide a permit process that similarly allows the taking, 
under certain circumstances, of wolves in the act of attacking 
livestock grazing on public land. In addition, they allow opportunistic 
noninjurious harassment of wolves by livestock producers on private and 
public grazing lands, and designated government employees may perform 
lethal and nonlethal control efforts to remove problem wolves under 
specified circumstances.
    As mentioned above, we promulgated a special rule under 4(d) for 
the Western DPS outside of the nonessential experimental population 
areas (the Central Idaho and Yellowstone nonessential experimental 
population areas) found at 17.40(n) (Western DPS 4(d) rule). The 
Western DPS 4(d) rule allows landowners and permittees on Federal 
grazing allotments to harass wolves in a noninjurious manner at any 
time. As discussed in the rule, this type of harassment will not affect 
the wolf population other than by making some individual wolves more 
wary of people. Wolves are adept social learners. Harassing wolves that 
have begun to be comfortable around people will cause those wolves to 
become more wary. Wolves that are wary of people and places that are 
frequented by people may be less likely to be involved in livestock and 
pet depredations. Wolves that are not wary of people are more 
vulnerable to being illegally killed or being hit by cars and, in rare 
and the most extreme circumstances, wolves can become habituated to 
human foods and can become a potential threat to human safety.
    In some situations the Western DPS 4(d) rule also allows the 
injurious harassment (for example, by rubber bullets) of wolves under a 
permit from us. This type of harassment will permit management of 
situations (for example, loitering around vulnerable livestock, 
approaching humans, trying to attack pets) before they have escalated 
into a situation that calls for more drastic measures such as lethal 
control. To prevent abuse, this type of activity would be limited by 

[[Page 10959]]

evaluation and controlled by a permit. In the experimental population 
areas, this type of management has been used in a few situations, and 
no wolves have been permanently injured.

State Management Plans

    In order to delist the Western DPS wolf population due to recovery 
the demographic criteria (a minimum of 30 breeding pairs of wolves [an 
adult male and a female wolf] that raise at least 2 pups until December 
31 or the biological equivalent of that definition that are equitably 
distributed through Montana, Idaho, and Wyoming) must be met, and the 
Service must determine, based on the best scientific and commercial 
data available, that the species is no longer in danger of extinction 
and is not likely to be in danger of extinction in the foreseeable 
future throughout all or a significant portion of its range. The basis 
for the determination is a review of the status of the species in 
relation to five factors: (A) the present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific or educational 
purposes; (C) disease or predation; (D) the inadequacy of existing 
regulatory mechanisms; and (E) other natural or manmade factors 
affecting its continued existence.
    State management plans have been determined by the Service as the 
most appropriate means of maintaining a recovered wolf population and 
demonstrating adequacy of regulatory mechanisms (i.e. addressing factor 
D) because the primary responsibility for management of the species 
will rest with the States upon delisting (and subsequent removal of the 
protections of the ESA). Based on the demographic criteria mentioned 
above, each State, therefore, needs to maintain at least 10 breeding 
pairs, so the wolf population will not fall below 30 breeding pairs 
overall and so that an equitable distribution of wolf breeding pairs is 
maintained among the three States. All three States submitted wolf 
management plans to the Service for review. The Service developed an 
independent review process for these three plans. Twelve recognized 
authorities in wolf management or research were asked their individual 
professional review and opinion of whether the State plans of Montana, 
Idaho, and Wyoming would achieve the stated objectives of each plan, 
and if collectively the plans will maintain, as a minimum, the Western 
DPS wolf population at recovery levels into the foreseeable future.
    Based on our review of the State management plans, the independent 
reviewers' comments, and the States' responses to those comments, the 
Service approved the Montana and Idaho wolf management plans as they 
were determined to be adequate to maintain their share of the tri-state 
wolf population above recovery levels. Neither Montana nor Idaho is 
required to take any additional action in order for the Service to 
proceed with a delisting proposal.
    Wyoming's wolf management plan, however, was not approved by the 
Service. Consequently, the proposed regulatory changes, which define 
the expanded authorities, would not affect the portion of the 
Yellowstone nonessential experimental population area in Wyoming. We 
intend to continue working with the State of Wyoming as they develop a 
State wolf management plan that we can approve; once we have approved 
wolf management plans for all three States, and barring the 
identification of any new threats to the species, we expect to propose 
rulemaking to remove the western DPS of the gray wolf from the List of 
Endangered and Threatened Vertebrates (for additional discussion, see 
our ANPR at 68 FR 15879).


    In preparation for delisting, the Idaho Legislature chartered the 
Legislative Wolf Oversight Committee to prepare an Idaho post-delisting 
Wolf Management Plan to facilitate the transfer of management authority 
to the State following delisting. In March 2002 the Legislature adopted 
the Idaho Wolf Conservation and Management Plan.
    The Idaho Department of Fish and Game (IDFG) is charged by statute 
with the management of Idaho's wildlife (Idaho Code 36-103(a)). Tribes 
in Idaho, however, manage wildlife with authorities that are similar 
to, but separate from, the State of Idaho. In managing for wolves, IDFG 
will consult with Tribes. The Idaho Wolf Conservation and Management 
Plan is summarized below.

Wolf Classification in Idaho

    In order to protect wolf populations by enforcing regulations and 
issuing citations for illegal take and by limiting and regulating legal 
take, wolves will be classified as either a big game animal, furbearer, 
or special classification predator that provides for controlled take 
after delisting, at the discretion of the Idaho Fish and Game 
Commission (IC 36-201). This classification will enable IDFG to provide 
protection for wolves as well as consider the impacts of wolves on 
other big game species, those sectors of the economy dependent upon 
sport hunting, livestock, domestic animals and humans.

Idaho Wolf Management Goals

    The goal of Idaho's conservation and management plan is to ensure 
the long-term survival of wolves in Idaho while minimizing wolf-human 
conflicts that result when wolves and people live in the same vicinity. 
Management for wolves means ensuring adequate number for long-term 
persistence of the species as well as ensuring that landowners, land 
managers, other citizens, and their property are protected. IDFG will 
manage wolves within the State according to the following table.

           Less than 15 packs                   More than 15 packs
               Management                           Management
                Control                              Control
Depredation control becomes              Depredation control is treated
 increasingly stringent until at <10      like all other large mammalian
 packs it reverts to the control plan     predators.
 specified in the final rule (50 CFR
 17.40(n)). In the unlikely event the
 number of packs in Idaho falls below
 10, depredations will be addressed
 with nonlethal control unless unusual
 circumstances absolutely necessitate
 the use of lethal control to end the
 depredation problem.
               Monitoring                           Monitoring
Monitoring becomes increasingly          Monitoring is done primarily by
 intensive to the point that each pack    indicators such as wolf
 contains some radio-collared             depredation complaints, autumn
 individuals and reproduction and         scent station surveys,
 survival in each pack is monitored on    telemetry, winter tracking
 a regular basis.                         surveys, and other
                                          observations of field

[[Page 10960]]

           Listing Under ESA
Listing remains a possibility for
 wolves if they are likely to become
 endangered as determined by Section 4
 of the ESA (16 U.S.C. 1533).

    Moreover, the Idaho plan provides:
    (1) The wolf populations will be managed at recovery levels that 
will ensure viable, self-sustaining populations until it can be 
established that wolves in increasing numbers will not adversely affect 
big game populations, the economic viability of IDFG, outfitters and 
guides, and others who depend on a viable population of big game 
animals. If the population falls below 15 packs, institute remedial 
management measures.
    (2) Assurances that resident wolf populations are able to 
interchange with wolves in adjacent States and provinces, thereby 
making Idaho's wolves part of a larger metapopulation. It is expected 
that adjacent States and provinces will also encourage this 
    (3) Management of wolves as part of the native resident wildlife 
resource. This species will be managed similar to other large mammalian 
carnivores resident in Idaho.
    (4) Minimize wolf-human conflicts by coordinating with USDA 
Wildlife Services to achieve prompt response to notifications of wolf 
depredation and prompt resolution of conflicts.
    (5) Establish a strong public education program that emphasizes 
wolf biology, management, and conservation and presents a balanced view 
of the societal impacts and costs of wolf reintroduction. Outreach 
should address all issues concerning conservation and management and 
present a balanced view of the impacts of wolves on big game species, 
those sectors of the economy dependent upon sport hunting, livestock, 
domestic animals, and humans. It is expected that Idaho Fish & Game 
will solicit cooperation and advice from all vested interests in 
developing educational materials.

Wolf Population Objectives

    Wolf management programs will influence the size and distribution 
of the population, although it will fluctuate with the availability and 
vulnerability of native prey. Where wolves are causing depredations, 
their distribution and numbers will have to be altered.
    When circumstances cause declines in the natural prey that are 
demonstrated as being attributable to wolf predation, management may be 
needed to temporarily reduce populations. In most instances, wolves can 
be managed similarly to how other large native mammalian predators are 
traditionally managed. However, sport hunting has not proven effective 
in the past to effectively manage wolf populations. After delisting, 
IDFG is authorized to evaluate and use sport hunting or any other means 
necessary to maintain wolf populations at recovery levels that will 
ensure a viable, self-sustaining population until such time as all 
impacts are known.
    In the unlikely event the population falls below 10 packs, 
depredations will be addressed with nonlethal control unless unusual 
circumstances absolutely necessitate the use of lethal control to end 
the depredation problem. Except for the lethal control measures, wolf 
management will revert to the same provisions that were in effect to 
recover the wolf population prior to delisting.

Incidental Take

    Human-related accidental deaths of wolves (capture myopathy, 
automobile accidents, etc.) are expected to occur occasionally, and 
inadvertent take of wolves by hunters and trappers during the course of 
otherwise legal actions is not expected to adversely affect wolf 
population objectives. In an effort to minimize such accidental take of 
wolves, IDFG will include a section on wolf identification, and a brief 
history of the reintroduction and conflict created thereby, as part of 
all required hunter education classes and provide similar information 
to all trapping license buyers.
    Hunters are responsible for accurately identifying their target 
before pulling the trigger. Cases of incidental take due to ``mistaken 
identity'' of the intended quarry will be subject to the same penalties 
applicable to other illegally/accidentally taken big game species. 
Incidents of illegal take deemed deliberate shall be punishable under 
the rules of illegal take of wildlife (Idaho Code 36-1402 and 36-1404). 
If convicted of a flagrant violation involving the killing, illegal 
possession, or illegal waste of a trophy big game animal as defined in 
Idaho Code 36-202(h), restitution must also be paid to the State for 
each wolf so killed, possessed, or wasted at the cost specified in 
Idaho Code 36-1404.
    Although wolves may occasionally be captured inadvertently in traps 
legally set for other furbearer species, relatively few people 
participate in trapping in Idaho (608 Idaho trapping licenses were sold 
in 2000). However, in the event that the frequency of nontarget capture 
is deemed unacceptable (exceeding the lethal capture of 4 
wolves per year), IDFG may consider implementing trap-size restrictions 
on land sets and set a minimum 36-hour check requirement for trappers 
using traps of that maximum size on land-based sets in the core area.
    IDFG may further consider implementing restrictions on the use of 
snares in occupied wolf areas to require all neck snares set in these 
areas to be equipped with break-away snare locks designed to hold 
coyotes or similar sized furbearers (e.g., bobcat) but release large 
nontarget species such as wolves or ungulates accidentally captured by 
a leg. After adoption by the Idaho Fish and Game Commission, specific 
rules and restrictions will be published in the furbearer trapping 
regulations section of the Upland Game Seasons brochure.
    Mandatory trapper education classes would be considered for all new 
trappers, including first-time nonresident trapping applicants, and 
education could be provided to all trapping license buyers on protocol 
for releasing an inadvertently captured wolf and/or contacting IDFG for 
assistance. Any incidental capture must be reported to IDFG within 5 
days of the incident. The complete carcass of any wolf lethally injured 
as a result of a nontarget capture must be salvaged and turned over to 
IDFG. The hide and skull will remain the property of IDFG.

Wolf Management

    Wolves, when delisted, will become a component of the native 
resident wildlife in Idaho. The designation of the wolf as a big game 
species, furbearer, or special classification of predator that provides 
for controlled take provides legal authorization for Idaho Department 
of Fish and Game to manage the species. Management includes inventory; 
predator-prey research; harvest monitoring; cooperation with agencies, 
individuals, tribes, other

[[Page 10961]]

States, and Canada; control to reduce depredations; and dissemination 
to the public of current, accurate information. In Idaho, hunting and 
trapping may be considered in the future when populations are at levels 
that justify public taking. If this is proposed by IDFG, there will be 
opportunity for full public comment and decisions will be based on 
sound biological data. Hunting of wolves may be authorized when 
necessary to meet big game harvest objectives and eliminate conflicts, 
while at the same time maintaining wolves at recovery levels that will 
ensure viable, self-sustaining populations.
    If management zones, similar to game management units, become 
helpful to IDFG as experience with wolf management dictates, then such 
zones may be established. Distribution patterns of the wolf population 
range from monitoring the movements of individually marked individuals 
representing study packs to see how their home ranges change, to 
documentation of the presence of packs using observations of field 
personnel and the public. Scent station and winter track surveys will 
also provide information on wolf distribution. The distributions of 
study packs that persist in a given area are expected to become 
predictable relative to prey movements and other factors as experience 
in monitoring grows. Continual monitoring will be needed to determine 
the pattern, but when it can be predicted with some degree of 
reliability, changes in that pattern will need to be explained and will 
provide additional insight into their management.
    The major mortality factor accruing to wolves throughout their 
range is humans (Fuller 1989). Thus, the human dimension is ultimately 
the most important component in management of this species. Rigorous 
enforcement of laws and regulations in order to minimize illegal take, 
and to reduce adverse public perception of management will be needed. 
When legal harvest is planned, harvest monitoring will be based on a 
requirement to report the location and sex of animals taken, similar to 
requirements for mountain lions and bears.

Wolf Monitoring and Prey Base Monitoring

    Monitoring wolf populations is the cornerstone of a management 
program. Wolf numbers, distribution, and breeding success will be 
estimated and compared with management goals. The monitoring program 
should focus on selected packs from representative areas across the 
State as support dictates. Annual, long term monitoring of selected 
packs allows for assessment of changes, an understanding of factors 
affecting pack size, and eventually, prediction of pack size relative 
to major influencing factors. Monitoring of prey populations, 
especially the deer species and elk, will need to be continued. Similar 
to the predator, annual census of selected, important prey populations 
should be conducted by IDFG and compared with data collected prior to 
wolf reintroduction.
    In the future, wolf management will have to evaluate the effects of 
predation on native prey, specifically other big game (National 
Research Council 1997). When adverse weather patterns representing 
combinations of drought and severe winter depress native ungulates, 
predation in combination with harvest may inhibit big game population 
recovery. Annual census of selected, important prey populations within 
the range of study packs should be conducted. It is extremely important 
that annual census of these populations is conducted in order to detect 
trends and eventually to aid in developing predictions of population 
size and trend. Factors that affect prey numbers, including weather, 
habitat conditions, predation, and hunter harvest, need to be fully 
assessed for these selected populations.
    Some study packs will inevitably range into neighboring States and 
British Columbia. Coordination in their monitoring with those 
jurisdictions, including the wildlife agencies, associated tribes and 
land management agencies will be needed. Eventually a wolf population 
size range will be reached that appears to be compatible with other 
uses of the prey base and is at levels that are tolerable as far as 
livestock depredations are concerned. This level will be ascertained 
with the population indices that may be used to estimate minimum 
numbers present, and will consider the distribution of wolves as well. 
Depredation management considerations will be involved in ascertaining 
the distribution and numbers of wolves within the State.

Idaho Indian Tribes

    Tribes with reservations or reserved rights in Idaho manage fish 
and wildlife species with authorities that are similar to, but separate 
from, the State of Idaho. The Nez Perce Tribe has done a commendable 
job, in conjunction with the Service, of managing wolf recovery efforts 
in Idaho since 1995. During wolf recovery, under contract with the 
Service, the Nez Perce Tribe has, in a very professional and successful 
way, provided such services as wolf monitoring, communications with 
affected and interested parties, and research. Upon delisting, IDFG 
shall clearly delineate roles and responsibilities of the several 
participating agencies and shall do so in consultation with the Nez 
Perce Tribe.

Coordination With Other Entities

    Natural resource land management agencies such as the USDA Forest 
Service (USFS) and the Bureau of Land Management (BLM) are responsible 
for managing lands for various goods and services, including providing 
the habitat necessary to maintain fish and wildlife species. Close 
coordination is necessary between IDFG and the land management agencies 
to meet the objectives of each agency. Through a Memorandum of 
Understanding with the Idaho State Animal Damage Control Board, USDA 
APHIS Wildlife Services is responsible for dealing with a wide variety 
of wildlife damage problems including predation on livestock. After 
delisting, including during the first five years, the Wildlife Services 
Agency of the U.S. Department of Agriculture, in cooperation with the 
Idaho Department of Fish and Game, will be responsible for depredation 
management necessary for the protection of private property.
    Upon delisting, IDFG will coordinate monitoring of wolves and their 
impact on other wildlife populations. IDFG will coordinate among the 
federal and State land management agencies, USDA Wildlife Services, the 
Governor's Office of Species Conservation, the FWS, and the Nez Perce 
Tribe in their respective roles in wolf monitoring during the 5-year 
post-delisting monitoring period as required by the ESA. IDFG will 
coordinate monitoring of wolves that border or range into neighboring 
States with wildlife staffs of those States.
    This plan must be flexible enough to be compatible with the 
dynamics of society and wildlife management. The plan must satisfy the 
needs of the State of Idaho in its efforts to minimize the impact of 
wolves on the Idaho outfitting industry, Idaho sportsmen, a diverse 
public and all others affected by wolf introduction. IDFG will update 
this plan periodically and submit any changes to the Idaho Legislature 
as if it were a new plan submitted for approval, amendment or rejection 
under Section 36-2405, Idaho Code.


    To provide the assurance to the Service that the State of Montana 
has adequate regulatory mechanisms in place to manage the wolf after 
the protections of the ESA are removed, the Governor of Montana 
appointed a 12-member Wolf Management Advisory

[[Page 10962]]

Council to provide recommendations to the Governor on an approach for 
wolf management once the wolf is delisted. In response to the Council's 
recommendations, Montana Department of Fish, Wildlife & Parks (FWP) 
undertook the development of the Montana Gray Wolf Conservation and 
Management Plan EIS, under the Montana Environmental Policy Act, to 
consider alternative approaches to conserve and manage a recovered gray 
wolf population in Montana. In September 2003, FWP adopted a 
conservation and management plan for managing wolves in Montana.
    Under Montana statute, FWP is the agency charged with conservation 
and management of resident wildlife. FWP recognizes the gray wolf as a 
native species and is committed to recovery of the species within 
Montana. The purpose of the Montana Gray Wolf Conservation and 
Management Plan is to manage wolves consistent with Montana's own State 
laws, policies, rules and regulations, except where management 
authority is otherwise explicitly reserved to other jurisdictions, such 
as Montana's Indian tribes. Ultimately, the management and conservation 
plan will be implemented through combined decisions and actions of FWP, 
the FWP Commission, the Montana Department of Livestock (MDOL), USDA 
Wildlife Services (WS), local law enforcement or county authorities, 
and other cooperators.
    The gray wolf remains listed as endangered under the Montana 
Nongame and Endangered Species Conservation Act of 1973 (87-5-131 MCA). 
Upon federal delisting, provisions of Montana's SB163 take effect and 
wolves would automatically be reclassified under State law from 
``endangered'' to a ``species in need of management.'' This statutory 
classification offers full legal protection under State law. 
Implementation of SB 163 requires FWP to develop and adopt final 
administrative rules and regulations under the ``species in need of 
management'' designation. In addition SB 163 deletes gray wolf from the 
list of species designated as ``predatory in nature'' which are 
systematically controlled by MDOL. State laws and administrative rules 
become the regulatory and legal mechanisms guiding management. FWP and 
the FWP Commission will establish the regulatory framework to manage 
the species. FWP is responsible for implementing monitoring, research, 
law enforcement, public outreach, and other functions.
    In general Montana's Gray Wolf Conservation and Management Plan 

Wolf Management and Population Objectives

    FWP would recognize the gray wolf as a native species and would 
integrate wolves as a valuable part of Montana's wildlife heritage. 
Wolves will be integrated and sustained in suitable habitats within 
complex management settings. The wolf program will be based on 
principles of adaptive management. Management strategies and conflict 
resolution tools will be more conservative as the number of breeding 
pairs according to the federal recovery definition decreases, 
approaching the legal minimum. In contrast, management strategies 
become more liberal as the number of breeding pairs increases.
    Ultimately, the status of the wolf population itself identifies the 
appropriate management strategies. Fifteen breeding pairs will be used 
as the signal to change management strategies. An adaptive approach 
will help FWP implement its wolf program over the wide range of social 
acceptance values. Sensitivity towards and prompt resolution of 
conflict where and when it develops is an important condition of not 
administratively capping wolf numbers or defining distribution. By 
applying the federal recovery definition of breeding pair, FWP would 
incorporate an added measure of security and margin for error in the 
face of unforeseen future events, as well as greater flexibility for 
management decisions on a day-to-day basis. Successful reproduction 
would be documented as well. Because not every pack (or social group) 
of wolves would meet the federal recovery definition as a breeding 
pair, more groups of wolves would also exist on the landscape in 
assurance that Montana's minimum contribution towards the tri-state 
total is achieved.
    As the Montana wolf population becomes more established, through 
the monitoring program, FWP will evaluate a more general definition of 
a social group (four or more wolves traveling in winter) as a potential 
proxy for a breeding pair. Wolf distribution in Montana, just as for 
all wildlife, will ultimately be defined by the interaction of the 
species ecological requirements and public acceptance, not through 
artificial delineations. Wolves will be encouraged on large contiguous 
blocks of public land, managed primarily as back country areas or 
National Parks where there is the least potential for conflict, 
particularly with livestock. Wolf packs in areas of interspersed public 
and private lands will be managed like other free-ranging wildlife in 
Montana and within the constraints of the biological and social 
characteristics, the physical attributes of the environment, land 
ownership, and land uses. Some agency discretion and flexibility will 
be exercised to accommodate the unique attributes of each pack, its 
history, the site-specific characteristics of its home range, landowner 
preferences, or other factors that cannot be reasonably predicted at 
this time.
    Management flexibility will be crucial to address all of the public 
interests that surround wolves. Wolf population management will include 
the full range of tools from non-lethal to lethal and will incorporate 
public outreach, conservation education, law enforcement, and landowner 
relations. An effective management program should match the management 
strategies to the environments or setting in which each wolf pack 
occurs, recognizing that wolves interact with and respond to the 
environment in which they live, too.

Wolf Monitoring

    FWP has the primary responsibility to monitor the wolf population, 
although collaborative efforts with other agencies and universities 
will be important. FWP will estimate wolf numbers, pack distribution, 
as well as document reproduction and tabulate mortality. FWP will also 
tabulate the number of breeding pairs meeting the federal recovery 
    Concurrently, FWP would also tabulate packs according to a more 
general definition of social group, meaning four or more wolves 
traveling in winter. While there is no guarantee that a group of four 
wolves traveling in winter would include young of the year, it is 
indicative of a socially cohesive group holding a territory and capable 
of reproduction. Four or more wolves traveling together will likely 
contain a male and female as an alpha pair and that has or will produce 
young in the spring. Determining pack counts in winter would follow the 
peak of human-caused mortality on adult wolves associated with summer/
fall livestock grazing seasons, potential illegal mortality during the 
fall big game hunting seasons, and the harvest expected through 
regulated hunting and trapping seasons.
    The monitoring program also will help confirm reproduction. FWP 
will use the monitoring program to verify that the more general 
definition is adequate to document that the population is reproducing 
and secure.

[[Page 10963]]

Once FWP becomes more confident that the more general definition is 
adequate, it will be applied within the adaptive management framework 
and FWP would not monitor packs using the more rigorous federal 
recovery definition.
    Maintaining the federal recovery definition as the monitoring 
metric under adaptive management over the long term may be too 
stringent for a recovered population, especially in light of the 
difficulty in distinguishing pups from similar sized adults in December 
and the expense of radio telemetry. FWS data indicate that there is a 
significant correlation between the number of packs meeting the federal 
recovery definition as a breeding pair and the number of social groups 
according to the more general definition of four or more wolves 
traveling in winter (Maier et al. in prep), lending greater confidence 
that the more general definition will prove adequate for the purposes 
of the monitoring program as well as the basis for decision-making 
within an adaptive management framework. When the wolf population no 
longer fits the definition of a species in need of management, or when 
wolf numbers have increased and population regulation is needed, the 
FWP Commission may reclassify the wolf as a big game animal or a 

Regulated Harvest

    Regulated public harvest of wolves by hunting and trapping during 
designated seasons will help FWP manage wolf numbers, fine tune 
distribution, and would take place within a comprehensive management 
program. Regulated wolf harvest would take place within the larger 
context of multi-species management programs, would be biologically 
sustainable, and would not compromise the investments made to recover 
the gray wolf. Within the context of a comprehensive program, regulated 
harvest should advance overall conservation goals by building social 
tolerance, interest in, and value for the species among those who would 
otherwise view wolf recovery as detrimental to their ungulate hunting 
experiences. Harvest management would proceed adaptively, but all 
hunting and trapping is precluded if there are fewer than 15 breeding 
pairs in Montana. The Montana Legislature would establish the license, 
fees, and penalties for illegal activities. The FWP Commission could 
then establish season structure and regulations to implement a public 
harvest program for wolves as it does for other hunting, trapping or 
fishing seasons. Initiating a public harvest program is a separate 
administrative process from this EIS. The FWP Commission follows a 
process that requires public notification of the proposal, public 
meetings, and a comment period of at least 30 days. The FWP Commission 
would initiate this process at a later date when a harvest program 
becomes biologically sustainable.
    The Montana Legislature would establish license fees and penalties. 
FWP would seek State legislation to make the unlawful taking of a gray 
wolf a misdemeanor under MCA 87-1-102. This statute makes it a 
misdemeanor to purposely, knowingly, or negligently violate State laws 
pertaining to taking, killing, possessing, or transporting certain 
species of wildlife. Including the gray wolf under this statute would 
be consistent with the inclusion of other legally classified wildlife 
species, such as deer, elk, moose, mountain lion, or black bear. FWP 
would also seek legislation to include the gray wolf under the 
restitution sections of MCA 87-1-111 that require a person convicted of 
illegally taking, killing, possessing certain wildlife species to 
reimburse the State for each animal or fish. Restitution values could 
also defined in MCA 87-1-115 for illegally killing or possessing trophy 

Wolf and Prey Base Integration

    FWP would seek to maintain the public's opportunity to hunt a wide 
variety of species under a variety of circumstances, and to do so in a 
sustainable, responsible manner. Wolf presence within the year-long 
range of a specific ungulate herd adds a new factor that FWP biologists 
must consider among all environmental and human-related factors. FWP 
will integrate management of predators and prey in an ecological, 
proactive fashion to prevent wide fluctuations in both predator and 
prey populations. To that end, FWP may increase or decrease hunter 
opportunity for either predators or prey species, depending on the 
circumstances. If reliable data indicate that a local prey population 
is significantly impacted by wolf predation in conjunction with other 
environmental factors, FWP would consider reducing wolf pack size. Wolf 
management actions would be paired with other corrective management 
actions to reduce ungulate mortality or enhance recruitment. Concurrent 
management efforts for wolves and ungulates would continue until the 
prey population rebounded, recognizing that by the time prey 
populations begin to respond they may be influenced by a new set of 
environmental factors.
    Prey species are managed according to the policy and direction 
established by the programmatic review of the wildlife program (FWP 
1999) and by species plans. Even though plans are written for 
individual species, the underlying foundation of those plans is based 

on an ecosystem perspective and recognizes the inherent variation in 
wildlife populations in response to the environment and human 
activities, including hunting. These plans typically describe a 
management philosophy that protects the long-term sustainability of the 
resource, with management objectives based on biological and social 
considerations. Furthermore, populations will be managed to keep them 
at or near FWP objectives--rather than significantly above or below 
objectives. As recommended by the council, the gray wolf will be 
incorporated into ungulate management and future planning efforts. 
Livestock producers and other landowners provide many benefits to the 
long-term conservation of gray wolves, not the least of which is the 
maintenance of open space and habitats that support a wide variety of 
wildlife, including deer and elk. At the same time, they can suffer 
financial losses due to wolves. These losses tend to be sheep and young 
cattle, although occasionally llamas, guarding dogs, or other livestock 
are lost. Some losses can be documented reliably but others cannot.

Wolf Conflicts

    Addressing wolf-livestock conflicts will entail two separate, but 
parallel elements. One element will be management activities by WS and 
FWP to minimize the potential for wolf-livestock conflicts and to 
resolve the conflicts where and when they occur. This would be funded, 
administered, and implemented by the cooperating agencies. Livestock 
producers should report any suspected wolf depredations (injuries or 
death) or the disruption of livestock or guarding animals to WS 
directly. If the investigating WS agent determines that a wolf or 
wolves were responsible, management response will be guided by the 
specific recommendations of the investigator, the provisions of this 
plan and by the multi-agency MOU. WS will take an incremental approach 
to address wolf depredations, guided by wolf numbers, depredation 
history, and the location of the incident.
    When wolf numbers are low and incidents take place on remote public 
lands, WS would use more conservative management tools. WS could apply 
progressively more liberal methods as wolf numbers increase and for 
incidents on private lands. Conflict history of the

[[Page 10964]]

pack, time of year, attributes of the pack (e.g., size or reproductive 
status), or the physical setting will all be considered before a 
management response is selected. FWP will determine the disposition of 
wolves involved in livestock depredations. FWP may also approve lethal 
removal of the offending animal by livestock owners or their agents by 
issuing a special kill permit. A special kill permit is required for 
lethal action against any legally classified wildlife in Montana, 
outside the defense of life/property provision or FWP Commission 
approved regulations. FWP will not issue special kill permits to 
livestock producers to remove wolves on public lands when wolf numbers 
are low. If Montana has at least 15 packs, FWP may issue a special kill 
permit to livestock producers that would be valid for public and 
private lands. FWP will be more liberal in the number of special kill 
permits granted as wolf numbers increase and for depredations in mixed 
land ownership patterns.
    In a proactive manner, WS and FWP will also work cooperatively with 
livestock producers and non-governmental organizations with an 
increased emphasis on proactive efforts to reduce the risk of wolf-
livestock conflicts developing in the first place. Landowners could 
contact a management specialist (FWP or WS) for help with assessing 
risk from wolves or other predators and identifying ways to minimize 
those risks while still acknowledging that the risk of livestock 
depredation by wolves will never be zero. Incentives may even be 
provided to participating producers.
    Beyond technical assistance from WS or FWP and other collaborative 
efforts, livestock producers (or their agents) may non-lethally harass 
wolves when they are close to livestock on public or private lands. 
Private citizens may also non-lethally harass wolves that come close to 
homes, domestic pets, or people. Upon delisting, private citizens could 
kill a wolf if it is threatening human life or domestic dogs. Livestock 
producers or their agents could also kill a wolf if it is attacking, 
killing, or threatening to kill livestock. This is consistent with 
Montana statutes that permit private citizens to defend life or 
property from imminent danger caused by wildlife. The definition of 
``livestock'' is clarified to mean cattle, sheep, horses, mules, pigs, 
goats, emu, ostrich, poultry, and herding or guarding animals (llama, 
donkeys, and certain special-use breeds of dogs commonly used for 
guarding or herding of livestock) for the purposes of addressing wolf-
livestock conflicts.
    Dogs used for other purposes such as hunting or as pets are not 
covered under this definition. FWP also clarifies the use of non-lethal 
harassment to refer to situations in which a wolf is discovered testing 
or chasing livestock and the owner attempts to scare or discourage the 
wolf in a non-injurious manner and without prior attempts to search 
out, track, attract or wait for the wolf. A special permit would be 
required to actually injure or kill the wolf or if a person 
purposefully attracted, tracked, or searched for the wolf. The second 
element addresses the economic losses of individual livestock producers 
through a compensation program when livestock are injured or killed by 

Montana Indian Tribes

    Montana's Indian Tribes have jurisdictional authority for wildlife 
conservation and management programs within reservations boundaries. 
FWP coordinates with tribal authorities on issues of mutual concern. 
Tribal coordination already takes place for other wildlife species 
through annual interagency meetings, working agreements and informal 
contacts at the field level.

Coordination With Other Entities

    An MOU will be signed by FWP, MDOL, and WS to address wolf-
livestock conflicts. The ongoing interagency, tribal, and interstate 
coordination activities are important cornerstones of program 
implementation and administration. The U.S. Forest Service (USFS), the 
National Park Service (NPS), the Bureau of Land Management (BLM), the 
Service, or other federal jurisdictions administer federally owned 
lands. These agencies manage these lands according to their enabling 
legislation and relevant federal laws, rules and regulations. FWP 
coordinates with federal agencies on wildlife and habitat issues of 
mutual concern, but has no jurisdiction over how those lands are 
    FWP would coordinate with other agencies and responsible parties to 
resolve any concerns about how cross boundary packs would be managed or 
how conflicts would be resolved to make sure all entities goals are 
being met or addressed.
Proposed Special Regulations Under 17.84--Nonessential Experimental 
Population Established Under Section 10(j) of the ESA (Vertebrates)
    The new special regulations proposed in this rule are intended to 
expand authorities under section 10(j) for States with approved wolf 
management plans in the experimental population areas. The special 
regulations are intended to provide that wolves near livestock could be 
harassed in a noninjurious manner at any time on private land or on 
public land by the livestock permittee. Intentional or potentially 
injurious harassment could occur by permit on private land and public 
land. Wolves attacking not only livestock, but also dogs, on private 
land could be taken without a permit if they are in the act of 
attacking such animals; on public land a permit will be required for 
such take. Permits could be issued by the Service to take wolves on 
private land if they are a risk to livestock or dogs.
    The new special regulations proposed in this rule will allow for 
take of wolves determined to be causing unacceptable impacts to wild 
ungulate populations. In addition, the new special regulations define 
livestock to include herding and guard animals. Finally, the new 
special regulations do not apply in the portion of the Yellowstone 
Management Area within the State of Wyoming.
    The special regulations also provide for States with wolf 
management plans approved by the Service to implement a transition from 
the provisions of this rule to the those provisions of the State wolf 
management plan consistent with federal regulations for nonessential 
experimental wolves within the boundaries of the State with the 
cooperation of the Service. Specifically we intend to provide any State 
in which the gray wolf is resident and which has a wolf management plan 
approved by the Service with the discretion to petition the Service to 
assume management responsibility of nonessential experimental gray 
wolves within the boundaries of that State.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we are 
soliciting comments or suggestions from the public, other concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this proposed rule.
    If you submit comments by e-mail, please submit them as an ASCII 
file and avoid the use of special characters and any form of 
encryption. Please also include ``Attn: RIN AT61''' and your name and 
return address in your e-mail message. If you do not receive a 
confirmation from the system that we have received your e-mail message, 
contact us directly by calling our Helena Office at telephone number 

[[Page 10965]]

    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at our Helena 
office (see ADDRESSES).
    In making any final decision on this proposal, we will take into 
consideration the comments and any additional information we receive, 
and such communications may lead to a final regulation that differs 
from this proposal.

Public Hearings

    In anticipation of public interest in this issue, we will schedule 
public hearings in Boise, ID, and Helena, MT. Anyone wishing to make 
oral comments for the record at a public hearing is encouraged to 
provide a written copy of their statement and present it to us at the 
hearing. In the event there is a large attendance, the time allotted 
for oral statements may be limited. Oral and written statements receive 
equal consideration. We will announce the date, time, and location of 
the public hearings through a notice in the Federal Register and in 
local media.

Required Determinations

Regulatory Planning and Review

    This proposed rule has not been reviewed by the Office of 
Management and Budget under Executive Order 12866.
    (a) This proposed rule would not have an annual economic effect of 
$100 million, or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government. This regulation 
would result in only minor positive economic effects for a small 
percentage of livestock producers.
    (b) This regulation will not create inconsistencies with other 
agencies' actions. This regulation reflects continuing success in 
recovering the gray wolf through long-standing cooperative and 
complementary programs by a number of Federal, State, and tribal 
    (c) This regulation will not materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients.
    (d) This regulation does not raise any novel legal or policy 

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. 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. SBREFA also amended the Regulatory Flexibility Act to require 
a certification statement. Based on the information that is available 
to us at this time, we are certifying that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    The majority of wolves in the West are currently protected under 
nonessential experimental population designations that cover Wyoming, 
most of Idaho, and southwestern Montana and that treat wolves as a 
threatened species. Special regulations exist for these experimental 
populations that currently allow government employees and designated 
agents, as well as livestock producers, to take problem wolves. An 
additional, naturally occurring population of wolves is found in 
northwestern Montana. This proposed rule does not change the 
nonessential experimental designation, but does propose additional 
special regulations so that States with wolf management plans approved 
by the Service can petition the Service to manage nonessential 
experimental wolves under those approved State management plans. These 
proposed changes would only have effect in States that have an approved 
State management plan for gray wolves. Within the Western DPS of the 
gray wolf, only the States of Idaho and Montana have approved plans. 
Therefore, the proposed regulation is expected to result in a small 
economic gain to some livestock producers in States with approved wolf 
management plans (i.e., Idaho and Montana) within the boundary of the 
nonessential experimental populations of gray wolves in the Western DPS 
(Central Idaho nonessential experimental population area and 
Yellowstone nonessential experimental population area); it will have no 
economic impact on livestock producers in Wyoming as their plan has not 
been approved.
    We propose special regulations that would adopt certain provisions 
of the 2003 special rule (under section 4(d)), which covered the area 
outside of the two nonessential experimental population areas mentioned 
above, providing for more consistent management both inside and outside 
of the nonessential experimental population areas, unless identified 
otherwise. Additionally new regulations were added that expand or 
clarify current prohibitions. Secondly, we propose to identify a 
process for transferring authorities within the experimental population 
boundaries to States with approved plans. Finally, the new special 
regulations identify the allowable forms of take in the portion of the 
Yellowstone Management Area within the State of Wyoming.
    Expanded or clarified prohibitions proposed in this rule include 
the following. Intentional or potentially injurious harassment could 
occur by permit on private land and public land. Wolves attacking not 
only livestock, but also dogs, on private land could be taken without a 
permit if they are in the act of attacking such animals; on public land 
a permit will be required for such take. Permits could be issued by the 
Service to take wolves on private land if they are a risk to livestock 
or dogs.
    The new special regulations proposed in this rule clarify take of 
wolves determined to be causing unacceptable impacts to wild ungulate 
populations. In addition, the new special regulations define livestock 
to include herding and guard animals.
    The new special regulations proposed in this rule provide for 
States with wolf management plans approved by and in cooperation with 
the Service to

[[Page 10966]]

implement a transition from the provisions of this rule to the 
provisions of the State wolf management plan for wolves that are 
consistent with federal regulations within the boundaries of the 
nonessential experimental population areas. States may, at their 
discretion, administer this transition through new or existing 
cooperative agreements or programs with the Service.
    In anticipation of delisting the Western DPS of the gray wolf, we 
have been working very closely with States to insure that their plans 
provide the protection and flexibility necessary to manage wolves at or 
above recovery levels. Approved plans are those plans that have passed 
peer review scrutiny and Service review aimed at insuring that these 
recovery levels are maintained. It is appropriate to have States which 
have met this approval standard begin managing wolves according to 
their approved plans for several reasons. The States already assume an 
important role in the management of this species, the goals for 
recovery have been exceeded, and a gradual transfer of responsibilities 
while the wolves are protected under the ESA will provide an 
opportunity for both the State wildlife agencies, federal agencies 
(FWS, USDA), and Tribes an adjustment period. The adjustment period 
will allow time to work out any unforeseen issues that may arise.
    The reduction of the restrictions on taking problem wolves proposed 
in this rule will make their control easier and more effective, thus 
reducing the economic losses that result from wolf depredation on 
livestock and guard animals and dogs. Furthermore, a private program 
compensates livestock producers if they suffer confirmed livestock 
losses by wolves. Since 1996, average compensation for livestock losses 
has been slightly over $10,000 in each recovery area per year. The 
potential effect on livestock producers in western States is small, but 
more flexible wolf management will be entirely beneficial to their 

Small Business Regulatory Enforcement Fairness Act

    This regulation will not be a major rule under 5 U.S.C. 801 et 
seq., the Small Business Regulatory Enforcement Fairness Act.
    (a) This regulation would not produce an annual economic effect of 
$100 million. The majority of livestock producers within the range of 
the wolf are small family-owned dairies or ranches and the total number 
of livestock producers that may be affected by wolves is small. The 
finalized take regulations will further reduce the effect that wolves 
will have on individual livestock producers by eliminating permit 
requirements. Compensation programs are also in place to offset losses 
to individual livestock producers. Thus, even if livestock producers 
affected are small businesses, their combined economic effects will be 
minimal and the effects are a benefit to small business.
    (b) This regulation would not cause a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions.
    (c) This regulation would not have a significant adverse effect on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 

Unfunded Mandates Reform Act

    The States within the Western DPS for which wolf management plans 
need approval in order to proceed with delisting of the species are 
Montana, Idaho, and Wyoming. The proposed regulations define a process 
for voluntary and cooperative transfer of management responsibilities 
back to the States. Therefore, in accordance with the Unfunded Mandates 
Reform Act (2 U.S.C. 1501, et seq.):
    (a) The Service has determined and certifies 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. As stated 
above, this regulation will result in only minor positive economic 
effects for a very small percentage of livestock producers.
    (b) This regulation will not produce a Federal mandate of $100 
million or greater in any year; that is, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. This 
regulation will not impose any additional wolf management or protection 
requirements on the States or other entities.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this regulation will not 
have significant implications concerning taking of private property by 
the Federal Government. This regulation will reduce regulatory 
restrictions on private lands and, as stated above, will result in 
minor positive economic effects for a small percentage of livestock 

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, this regulation will not 
have significant Federalism effects. This regulation will not have a 
substantial direct effect on the States, on the relationship between 
the States and the Federal Government, or on the distribution of power 
and responsibilities among the various levels of government.

Civil Justice Reform (E.O. 12988)

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

Paperwork Reduction Act

    This regulation does not contain any new collections of information 
other than those permit application forms already approved under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of 
Management and Budget clearance number 1018-0094.

National Environmental Policy Act

    In 1994, the Service issued an Environmental Impact Statement (EIS) 
(Service 1994) that addressed the impacts of introducing gray wolves to 
Yellowstone National Park and central Idaho and the nonessential 
experimental population rule for these reintroductions. The 1994 EIS 
addressed cooperative agreements whereby the States of Wyoming, 
Montana, and Idaho could assume the lead for implementing wolf recovery 
and anticipated that the States and tribes would be the primary 
agencies implementing the experimental population rule outside National 
Parks and National Wildlife Refuges. We intend to evaluate whether any 
revisions to the EIS are required prior to finalizing this proposed 

Government-to-Government Relationship with Tribes (E.O. 13175)

    In accordance with the President=s memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
will closely coordinate this proposed rule with the affected tribes 
within the Western DPS. We intend to fully consider all of their 
comments on the proposed special regulations submitted during the 
public comment period.

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

[[Page 10967]]

Statements of Energy Effects when undertaking certain actions. This 
proposed rule is not expected to significantly affect energy supplies, 
distribution, and use. Therefore, this action is not a significant 
energy action and no Statement of Energy Effects is required.

Clarity of the Rule

    Executive Order 12866 requires agencies to write regulations that 
are easy to understand. We invite your comments on how to make this 
proposal easier to understand including answers to questions such as 
the following: Are the requirements in the document clearly stated? 
Does the proposed rule contain technical language or jargon that 
interferes with the clarity? Does the format of the proposed rule 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? And is the description of the proposed rule 
in the SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the proposed rule? What else could we do to make the 
proposed rule easier to understand?
    Send a copy of any written comments about how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. 
You also may e-mail comments to: Exsec@ios.doi.gov.

References Cited

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, the Service proposes to amend part 17, subchapter I, 
title 50 of the Code of Federal Regulations as set forth below:


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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
    2. Section 17.84 is amended as follows:
    a. Redesignate paragraphs (j) through (m) as paragraphs (k) through 
(n), respectively; and
    b. Add a new paragraph (j) to read as set forth below:

Sec.  17.84  Special rules--vertebrates

* * * * *
    (j) Gray wolf (Canis lupus). (1) The gray wolves (wolf) identified 
in paragraph (j)(11) of this section are nonessential experimental. 
These wolves will be managed in accordance with the respective 
provisions of this section in the boundaries of the nonessential 
experimental population area within any State that has a wolf 
management plan approved by the Service, as further provided in this 
paragraph (Sec.  17.84(j)).
    (2) The Service finds that reintroduction of nonessential 
experimental gray wolves, as defined in this section, will further the 
conservation of the species.
    (3) Definitions of terms used in paragraph (j) of this section 
    Active den site. A den or a specific aboveground site that is being 
used on a daily basis by wolves to raise newborn pups during the period 
April 1 to June 30.
    Breeding pair. An adult male and an adult female wolf that, during 
the previous breeding season, have produced at least two pups that 
survived until December 31 of the year of their birth.
    Designated agent. Includes Federal agencies as directed by the 
Secretary, and States or Tribes with a management plan approved by the 
Secretary, cooperatively managing under the provisions of this section.
    Domestic animals. Animals that have been selectively bred over many 
generations to enhance specific traits for their use by humans, 
including use as pets. This includes livestock (as defined below) and 
    In the act. The actual biting, wounding, grasping, molesting, 
harassing or killing or reasonable belief that such biting, wounding, 
grasping, molesting, harassing or killing is imminent.
    Livestock. Cattle, sheep, horses, mules, goats and herding or guard 
animals (llamas, donkeys, and certain special-use breeds of dogs 
commonly used for guarding or herding livestock) or as otherwise 
defined in any State or tribal wolf management plans as approved by the 
Service. This excludes dogs that are not being used for livestock 
guarding or herding.
    Noninjurious. Does not cause either temporary or permanent physical 
damage or death.
    Opportunistic harassment. Harassment without the conduct of prior 
purposeful actions to attract, track, wait for, or search out the wolf.
    Problem wolves. Wolves that attack livestock, or wolves that once 
in a calendar year attack domestic animals other than livestock.
    Public land. Federal land and any other public land designated in 
State and tribal wolf management plans as approved by the Service.
    Remove. Place in captivity or kill or release in another location.
    Unacceptable impact. Any decline in an ungulate population so that 
population is not meeting established State population management 
goals, with recruitment that does not allow the population to recover.
    Wounded. Exhibiting torn flesh and bleeding or other evidence of 
physical damage caused by a wolf bite.
    (4) Allowable forms of take of gray wolves. The following 
activities, only in the specific circumstances described under this 
section, are allowed: opportunistic harassment; intentional harassment; 
taking on private land; taking on public land; taking in response to 
impacts on wild ungulates; taking in defense of human life; taking to 
protect human safety; taking by government agents to remove problem 
wolves; incidental take; taking under permits; and taking per 
authorizations for agency employees. Other than as expressly provided 
in this rule, all other take activities are considered a violation of 
section 9 of the Act. Any wolf, or wolf part, taken legally must be 
turned over to the Service unless otherwise specified in paragraph (j) 
of this section. Any taking of wolves must be reported as outlined in 
paragraph (j)(7) of this section.
    (i) Opportunistic harassment. Landowners on their own land and 
livestock producers or permittees who are legally using public land 
under valid livestock grazing allotments may conduct opportunistic 
harassment of any gray wolf in a noninjurious manner at any time. 
Opportunistic harassment must be reported to the Service within 7 days 
as outlined in paragraph (j)(7) of this section.
    (ii) Intentional harassment. After we or our designated agent have 
confirmed persistent wolf activity on privately owned land or on a 
public land grazing allotment, we or the State fish and game agency may 
issue a permit valid for not longer than 1 year, with appropriate 
conditions, to any landowner to harass wolves in a potentially 
injurious manner (such as by projectiles designed to be nonlethal to 
larger mammals). The harassment must occur as specifically identified 
in the permit.
    (iii) Taking by landowners on private land. Landowners may take 
wolves on privately owned land in the following two additional 

[[Page 10968]]

    (A) Any landowner may take a gray wolf that is in the act of 
biting, wounding, grasping, molesting, harassing, or killing livestock, 
livestock-guarding animals, or domestic animals, provided that the 
landowner provides evidence of animal(s) freshly (less than 24 hours) 
wounded, harassed, molested, or killed by wolves, and we or our 
designated agent are able to confirm that the animal(s) were wounded, 
harassed, molested, or killed by wolves. The taking of any wolf without 
such evidence may be referred to the appropriate authorities for 
    (B) A private landowner may be issued a limited duration permit by 
us or the State fish and game agency to take a gray wolf on the 
landowner's private land if:
    (1) This private property or an adjacent private property has had 
at least one depredation by wolves on livestock, livestock-guarding 
animals, or domestic animals that has been confirmed by us or our 
designated agent; or
    (2) We or our designated agent have determined that wolves are 
routinely present on that private property and present a significant 
risk to the health and safety of livestock, livestock-guarding animals, 
or domestic animals. The landowner must conduct the take in compliance 
with the permit issued by the Service or a State with an approved 
management plan.
    (iv) Take on public land. We or the State fish and game agency may 
issue permits to take gray wolves under certain circumstances to 
livestock producers or permittees who are legally using public land 
under valid livestock grazing allotments. The permits, which may be 
valid for not more than 1 year, can allow the take of a gray wolf if:
    (A) Public land or adjacent public land has had at least one 
depredation by wolves on livestock, livestock-guarding animals, or 
domestic animals that has been confirmed by us or our designated agent; 
    (B) We or our designated agent have determined that wolves are 
routinely present on public land and present a significant risk to the 
health and safety of livestock, livestock-guarding animals, or domestic 
animals. We or our designated agent will investigate and determine if 
the previously wounded or killed livestock were wounded or killed by 
wolves. The taking of any wolf without such evidence may be referred to 
the appropriate authorities for prosecution.
    (v) Take in response to wild ungulate impacts. If wolves are 
causing unacceptable impacts to wild ungulate populations, a State or 
tribe may remove the wolves. In order for this provision to apply, the 
States or tribes must consult with the Service and identify possible 
mitigation measures. Before wolves can be removed we must, in 
cooperation with the States or tribes, determine that such actions will 
not inhibit wolf recovery levels.
    (vi) Take in defense of human life. Any person may take a gray wolf 
in defense of the individual's life or the life of another person. The 
unauthorized taking of a wolf without an immediate and direct threat to 
human life may be referred to the appropriate authorities for 
    (vii) Take to protect human safety. We or a Federal land management 
agency or a State or tribal conservation agency may promptly remove any 
wolf that we or our designated agent determines to be a demonstrable 
but nonimmediate threat to human life or safety.
    (viii) Take of problem wolves by Service personnel or our 
designated agent. We or our designated agent may carry out aversive 
conditioning, nonlethal measures, relocation, permanent placement in 
captivity, or lethal control of problem wolves. If nonlethal 
depredation measures occurring on public lands result in the capture, 
prior to October 1, of a female wolf showing signs that she is still 
raising pups of the year (e.g., evidence of lactation, recent sightings 
with pups), whether or not she is captured with her pups, then she and 
her pups may be released at or near the site of capture. Female wolves 
with pups may be removed if continued depredation occurs. Problem 
wolves that depredate on domestic animals more than once in a calendar 
year, including female wolves with pups regardless of whether on public 
or private lands, may be removed from the wild. To determine the 
presence of problem wolves, we or our designated agents will consider 
all of the following:
    (A) Evidence of wounded livestock or other domestic animals or 
remains of a carcass that shows that the injury or death was caused by 
    (B) The likelihood that additional losses may occur if no control 
action is taken;
    (C) Any evidence of unusual attractants or artificial or 
intentional feeding of wolves; and
    (D) Evidence that, on public lands, if animal husbandry practices 
were previously identified in existing approved allotment plans and 
annual operating plans for allotments, they were followed.
    (ix) Incidental take. Take of a gray wolf is allowed if the take 
was accidental and incidental to an otherwise lawful activity and if 
reasonable due care was practiced to avoid such taking. Incidental take 
is not allowed if the take is not accidental or if reasonable due care 
was not practiced to avoid such taking; we may refer such taking to the 
appropriate authorities for prosecution. Shooters have the 
responsibility to identify their target before shooting. Shooting a 
wolf as a result of mistaking it for another species is not considered 
accidental and may be referred to the appropriate authorities for 
    (x) Take under permits. Any person with a valid permit issued by 
the Service under Sec.  17.32, or our designated agent, may take wolves 
in the wild, pursuant to terms of the permit.
    (xi) Additional taking authorizations for agency employees. When 
acting in the course of official duties, any employee of the Service or 
appropriate Federal, State, or tribal agency, who is designated as an 
agent in writing for such purposes by the Service, may take a wolf or 
wolf-like canid for the following purposes; such take must be reported 
to the Service within 15 days as outlined in paragraph (j)(7) of this 
section and specimens may be retained or disposed of only in accordance 
with directions from the Service:
    (A) Scientific purposes;
    (B) Avoiding conflict with human activities;
    (C) Improving wolf survival and recovery prospects;
    (D) Aiding or euthanizing sick, injured, or orphaned wolves;
    (E) Disposing of a dead specimen;
    (F) Salvaging a dead specimen that may be used for scientific 
    (G) Aiding in law enforcement investigations involving wolves; or
    (H) Preventing wolves with abnormal physical or behavioral 
characteristics, as determined by the Service, from passing on those 
traits to other wolves.
    (5) Federal land use. Restrictions on the use of any Federal lands 
may be put in place to prevent the take of wolves at active den sites 
between April 1 and June 30. Otherwise, no additional land-use 
restrictions on Federal lands, except for National Parks or National 
Wildlife Refuges, may be necessary to reduce or prevent take of wolves 
solely to benefit gray wolf recovery under the Act. This prohibition 
does not preclude restricting land use when necessary to reduce 
negative impacts of wolf restoration efforts on other endangered or 
threatened species.
    (6) Reporting requirements. Except as otherwise specified in 
paragraph (j) of this section or in a permit, any taking of a gray wolf 
must be reported to the Service within 24 hours. We will allow

[[Page 10969]]

additional reasonable time if access to the site is limited. Report 
wolf takings, including opportunistic harassment, to U.S. Fish and 
Wildlife Service, Western Gray Wolf Recovery Coordinator, or a Service-
designated representative of another Federal, State, or tribal agency. 
Unless otherwise specified in paragraph (j) of this section, any wolf 
or wolf part, taken legally must be turned over to the Service, which 
will determine the disposition of any live or dead wolves.
    (7) No person shall possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any wolf or part thereof 
from the experimental populations taken in violation of the regulations 
in paragraph (j) of this section or in violation of applicable State or 
tribal fish and wildlife laws or regulations or the Endangered Species 
    (8) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to be committed any offense defined in this 
    (9) The site for reintroduction is within the historic range of the 
    (i) The central Idaho area is shown on the following map. The 
boundaries of the nonessential experimental population area will be 
those portions of Idaho that are south of Interstate Highway 90 and 
west of Interstate 15, and those portions of Montana south of 
Interstate 90, Highway 93 and 12 from Missoula, Montana, west of 
Interstate 15.

    (ii) The Yellowstone Management Area is shown on the following map. 
The boundaries of the nonessential experimental population area will be 
that portion of Idaho that is east of Interstate Highway 15; that 
portion of Montana that is east of Interstate Highway 15 and south of 
the Missouri River from Great Falls, Montana, to the eastern Montana 
border; and all of Wyoming.

[[Page 10970]]


    (iii) All wolves found in the wild within the boundaries of this 
section after the first releases will be considered nonessential 
experimental animals. In the conterminous United States, a wolf that is 
outside an experimental area would be considered as threatened unless 
it is marked or otherwise known to be an experimental animal; such a 
wolf may be captured for examination and genetic testing by the Service 
or Service-designated agency. Disposition of the captured animal may 
take any of the following courses:
    (A) If the animal was not involved in conflicts with humans and is 
determined likely to be an experimental wolf, it may be returned to the 
reintroduction area.
    (B) If the animal is determined likely to be an experimental wolf 
and was involved in conflicts with humans as identified in the 
management plan for the closest experimental area, it may be relocated, 
placed in captivity, or killed.
    (C) If the animal is determined not likely to be an experimental 
animal, it will be managed according to any Service-approved plans for 
that area or will be marked and released near its point of capture.
    (D) If the animal is determined not to be a wild gray wolf or if 
the Service or agencies designated by the Service determine the animal 
shows physical or behavioral evidence of hybridization with other 
canids, such as domestic dogs or coyotes, or of being an animal raised 
in captivity, it may be returned to captivity or killed.
    (10) The reintroduced wolves will be monitored during the life of 
the project, including by the use of radio telemetry and other remote 
sensing devices as appropriate. All released animals will be vaccinated 
against diseases and parasites prevalent in canids, as appropriate, 
prior to release and during subsequent handling. Any animal that is 
sick, injured, or otherwise in need of special care may be captured by 
authorized personnel of the Service or Service-designated agencies and 
given appropriate care. Such an animal will be released back into its 
respective reintroduction area as soon as possible, unless physical or 
behavioral problems make it necessary to return the animal to captivity 
or euthanize it.
    (11) Once recovery goals are met for the species, a rule will be 
proposed to address delisting, as appropriate.
    (12) Any State in which the gray wolf resides and is subject to the 
terms of Sec.  17.84(j) may petition the Secretary for management 
responsibility of nonessential experimental gray wolves in that State 
provided that the State has a wolf management plan approved by the 
    (i) A State petition for wolf management must show:
    (A) That authority resides in the State to conserve the gray wolf 
throughout the geographical range of all experimental populations 
within the State;
    (B) That the State is authorized to conduct investigations to 
determine the status and requirements for the conservation of the gray 
wolf throughout the State; and
    (C) That the State has an acceptable conservation program for the 
gray wolf, throughout all of the nonessential experimental population 
areas within the State, including the requisite

[[Page 10971]]

authority and capacity to carry out that conservation program.
    (ii) The Secretary shall approve such a petition within 30 days of 
receipt upon a finding that the applicable criteria are met and the 
completion of a consultation under section 7 of the Act that concludes 
that approval is not likely to jeopardize the continued existence of 
the gray wolf in the Western Distinct Population Segment (DPS), as 
defined in Sec.  17.11(h).
    (iii) If the Secretary approves the petition, the Secretary shall 
immediately enter into a Memorandum of Agreement (MOA) with the 
Governor of that State.
    (iv) An MOA for State management as provided in this section may 
allow a State to manage nonessential experimental gray wolf populations 
within its borders in accordance with the State's management plan 
approved by the Service, except that:
    (A) The MOA may not provide for any form of management that would 
be inconsistent with the protection provided to the species under the 
Act, and shall specify those portions of the State's post-delisting 
management plan for wolves that shall be implemented at this time;
    (B) The MOA cannot vest the State with any authority over matters 
concerning section 4 of the Act; and
    (C) It may not provide for sport hunting absent a finding by the 
Secretary of an extraordinary case where population pressures within a 
given ecosystem cannot be otherwise relieved.
    (v) An MOA for State management must provide for co-law enforcement 
responsibilities to ensure that the Service has the authority to also 
enforce the State management program prohibitions on take.
    (vi) Upon execution, an MOA, consistent with its terms, may augment 
the prohibitions on take contained in the experimental population rule 
applicable to the nonessential experimental gray wolf populations 
throughout the State, and any other specific section 9 or section 4(d) 
restrictions that may now apply or that could be applicable in the 
future, until delisting, so long as the MOA remains in legal effect.
    (vii) The MOA will expressly provide that the agreement may be the 
basis upon which State regulatory measures will be judged for delisting 
purposes. The authority for the MOA will be the Endangered Species Act, 
the Fish and Wildlife Act of 1956 and the Fish and Wildlife Cooperation 
    (viii) In order for the MOA to remain in effect, the Secretary must 
find, on an annual basis, that the management under the MOA is not 
jeopardizing the continued existence of the gray wolf in the Western 
DPS. The Secretary may terminate the MOA upon 90 days notice to the 
State if:
    (A) Management under the MOA is likely to jeopardize the continued 
existence of the gray wolf in the Western DPS; or
    (B) The State has failed materially to comply with the MOA or any 
relevant provision of the State management plan; or
    (C) Biological circumstances within the range of the gray wolf 
indicate that delisting the species would not be warranted.
* * * * *

    Dated: March 3, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-5248 Filed 3-4-04; 2:52 pm]