[Federal Register: February 9, 2005 (Volume 70, Number 26)]
[Proposed Rules]               
[Page 6819-6828]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI80

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability; notice of public 


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
reintroduce northern aplomado falcons (Falco femoralis septentrionalis) 
(falcon) into their historic habitat in southern New Mexico and Arizona 
with the purpose of establishing a viable resident population. If this 
proposed rule is finalized, we may release captive-raised falcons as 
early as the summer of 2005 and release up to 150 additional falcons 
annually in the summer and/or fall for 10 or more years thereafter 
until a self-sustaining population is established. We propose to 
designate this reintroduced population as a nonessential experimental 
population (NEP) according to section 10(j) of the Endangered Species 
Act of 1973 (Act), as amended. The geographic boundary of the proposed 
NEP includes all of New Mexico and Arizona. A draft environmental 
assessment (EA) has been prepared on this proposed action and is 
available for comment (see ADDRESSES section below).
    This proposed action is part of a series of reintroductions and 
other recovery actions that the Service, Federal and State agencies, 
and other partners are conducting throughout the species' historical 
range. This proposed rule provides a plan for establishing the NEP and 
provides for limited allowable legal taking of the northern aplomado 
falcon within the defined NEP area.

DATES: We will consider all comments on this proposed rule received 
from interested parties by April 11, 2005. We will also hold one public 
hearing on this proposed rule; we have scheduled the hearing for March 
15, 2005 at 7 p.m. (see ADDRESSES section of this proposed rule for the 

ADDRESSES: You may submit comments and other information by any of the 
following methods (please see ``Public Comments Solicited'' section 
below for additional guidance):
     Mail or Hand Delivery: Field Supervisor, New Mexico 
Ecological Services Field Office, 2105 Osuna Road NE., Albuquerque, New 
Mexico 87113.
     Fax: (505) 346-2542
     E-mail: R2FWE_AL@fws.gov.
    You may obtain copies of the proposed rule and the draft EA from 
the above address or by calling (505) 346-2525. The proposed rule and 
draft EA are also available from our Web site at http://ifw2es.fws.gov/Library/

    The complete file for this proposed rule will be available for 
public inspection, by appointment, during normal business hours at the 
New Mexico Ecological Services Field Office, 2105 Osuna Road NE, 
Albuquerque, New Mexico 87113.
    The public hearing will be held March 15, 2005, at the Corbett 
Center Student Union, New Mexico State University, Las Cruces, New 
Mexico, 88003. The Corbett Center Student

[[Page 6820]]

Union is located at the intersection of Jordan Street and University 
Avenue. The hearing will begin at 7 p.m. and last until 8:45 p.m., with 
an informal question and answer session beginning at 6 p.m. Parking is 
located in Lot 27 off of Triviz and University Avenue.

FOR FURTHER INFORMATION CONTACT: Susan MacMullin, Field Supervisor, New 
Mexico Ecological Services Field Office, telephone (505) 346-2525 (see 


Public Comments Solicited

    We want the final rule to be as effective as possible and the draft 
EA on the proposed action to evaluate all potential issues associated 
with this action. Therefore, we invite the public, concerned Tribal and 
government agencies, the scientific community, industry, and other 
interested parties to submit comments or recommendations concerning any 
aspect of this proposed rule and the draft EA. Comments should be as 
specific as possible.
    To issue a final rule to implement this proposed action and to 
determine whether to prepare a finding of no significant impact or an 
environmental impact statement, we will take into consideration all 
comments and any additional information we receive. Such communications 
may lead to a final rule that differs from this proposal. All comments, 
including names and addresses, will become part of the supporting 
    If you wish to provide comments and/or information, you may submit 
your comments and materials by any one of several methods (see 
ADDRESSES section). Comments submitted electronically should be in the 
body of the e-mail message itself or attached as a text file (ASCII), 
and should not use special characters or encryption. Please also 
include ``Attn: Falcon Proposed 10(j) Rule,'' your full name, and your 
return address in your e-mail message. Our practice is to make comments 
that we receive on this rulemaking, 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 Federal law. In some circumstances, we may withhold from 
the rulemaking record a respondent's identity, as allowable by Federal 
law. If you wish for 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, including individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.


    1. Legislative: Congress made significant changes to the Act in 
1982 with addition of section 10(j), which provides for the designation 
of specific reintroduced populations of listed species as 
``experimental populations.'' We have always had the authority to 
reintroduce populations into unoccupied portions of a listed species' 
historical range when doing so would foster the conservation and 
recovery of the species. However, local citizens often opposed these 
reintroductions because they were concerned about placement of 
restrictions and prohibitions on Federal and private activities. Under 
section 10(j) of the Act, the Secretary of the Interior can designate 
reintroduced populations established outside the species' current 
range, but within its historical range as ``experimental.'' Based on 
the best available information, we must determine whether an 
experimental population is ``essential'' or ``nonessential'' to the 
continued existence of the species. Regulatory restrictions are 
considerably reduced under a nonessential experimental population (NEP) 
    Without the ``nonessential experimental population'' designation, 
the Act provides that species listed as endangered or threatened are 
afforded protection primarily through the prohibitions of section 9 and 
the requirements of section 7. Section 9 of the Act prohibits the take 
of an endangered species. ``Take'' is defined by the Act as harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or 
attempt to engage in any such conduct. Service regulations (50 CFR 
17.31) generally extend the prohibition of take to threatened wildlife. 
Section 7 of the Act outlines the procedures for Federal interagency 
cooperation to conserve federally listed species and protect designated 
critical habitat. It mandates all Federal agencies to determine how to 
use their existing authorities to further the purposes of the Act to 
aid in recovering listed species. It also states that Federal agencies 
will, in consultation with the Service, ensure that any action they 
authorize, fund, or carry out is not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Section 7 of the Act does 
not affect activities undertaken on private lands unless they are 
authorized, funded, permitted, or carried out by a Federal agency.
    For purposes of section 9 of the Act, individual species within a 
NEP area are treated as threatened regardless of the species' 
designation elsewhere in its range. Through section 4(d) of the Act, we 
have greater discretion in developing management programs and special 
regulations for threatened species than we have for endangered species. 
Section 4(d) of the Act allows us to adopt whatever regulations are 
necessary to provide for the conservation of a threatened species. The 
special 4(d) rule contains the prohibitions and exemptions necessary 
and appropriate to conserve that species. Regulations issued under 
section 4(d) for NEPs are usually more compatible with routine human 
activities in the reintroduction area.
    For the purposes of section 7 of the Act, we treat NEPs as 
threatened species when the NEP is located within a National Wildlife 
Refuge or a unit of the National Park System, and therefore section 
7(a)(1) and the consultation requirements of section 7(a)(2) of the Act 
apply in these units. Section 7(a)(1) requires all Federal agencies to 
use their authorities to conserve listed species. Section 7(a)(2) 
requires that Federal agencies, in consultation with the Service, 
insure that any action authorized, funded, or carried out is not likely 
to jeopardize the continued existence of a listed species or adversely 
modify its critical habitat. When NEPs are located outside a National 
Wildlife Refuge or unit of the National Park System, we treat the 
population as proposed for listing and only two provisions of section 7 
would apply: section 7(a)(1) and section 7(a)(4). In these instances, 
NEPs provide additional flexibility because Federal agencies are not 
required to consult with us under section 7(a)(2). Section 7(a)(4) 
requires Federal agencies to confer (rather than consult) with the 
Service on actions that are likely to jeopardize the continued 
existence of a proposed species. The results of a conference are 
advisory in nature and do not restrict agencies from carrying out, 
funding, or authorizing activities.
    Individuals used to establish an experimental population may come 
from a donor population, provided their removal will not create adverse 
impacts upon the parent population, and provided appropriate permits 
are issued in accordance with our regulations (50 CFR 17.22) prior to 
their removal. In this case, captively bred birds obtained

[[Page 6821]]

from a donor population were propagated with the intention of re-
establishing a wild population within the United States to achieve 
recovery goals.
    2. Biological: The northern aplomado falcon (hereafter referred to 
as falcon) is one of three subspecies of the aplomado falcon and the 
only subspecies recorded in the United States. This subspecies was 
listed as an endangered species on February 25, 1986 (51 FR 6686). The 
falcon is classified in the Order Falconiformes, Family Falconidae. 
Adults have a buffy upper breast with broad, blackish flanks usually 
extending into a band across the breast; the lower breast and undertail 
feathers are rufous (red). They have a long blackish tail marked with 
narrow white bands. Wings are dark above with blackish wing linings and 
white-edged feathers that form a narrow white line on the trailing 
edges of the wings. The falcon has a bold black and white facial 
pattern. Cere (nose area), eye-ring, legs, and feet are bright yellow. 
Males and females look the same, but males are noticeably smaller than 
females (Keddy-Hector 2000).
    Falcons require open habitats that have scattered trees for 
hunting, roosting, and nesting and an understory of grass and shrubs. 
Habitat types include yucca-covered ridges in coastal prairie, riparian 
woodland in open grassland, palm and oak savannas, deciduous woodland, 
yucca-mesquite grasslands, and a variety of other open desert grassland 
and shrub habitats (see review in Keddy-Hector 2000).
    Falcons are long-lived monogamous birds that court through a series 
of aerial displays by the male and mutual soaring and diving by the 
pair. They do not build their own nests; instead they use abandoned 
stick nests of other bird species, including other raptor species, 
crows, and ravens. Falcons are territorial during the breeding season 
and some pairs remain near and defend nest sites throughout the year. 
Clutches of two to four eggs are laid between January and July with 
most clutches initiated in April and May. Both sexes participate in 
incubation of eggs, and brooding and feeding of young. Young fledge 
after about 35 days and continue to be fed by their parents for at 
least another month (Hector 1987). Falcons feed upon medium-sized 
birds, insects, rodents, bats, and reptiles. Falcon pairs often hunt 
cooperatively (Keddy-Hector 2000).
    Historically, falcons occurred throughout coastal prairie habitat 
along the southern Gulf coast of Texas, and in savanna and grassland 
habitat along both sides of the Texas-Mexico border, southern New 
Mexico, and southeastern Arizona. Falcons were also present in the 
Mexican states of Tamualipas, Veracruz, Chiapas, Campeche, Tabasco, 
Chihuahua, Coahuila, Sinaloa, Jalisco, Guerrero, Yucatan, and San Luis 
Potosi, and on the Pacific coast of Guatemala and El Salvador (Keddy-
Hector 2000). Falcons were fairly common in suitable habitat throughout 
these areas until the 1940s, but subsequently declined rapidly with no 
documented nesting attempts by wild birds in New Mexico between 1952 
and 2001. There have been no verified sightings of falcons in Arizona 
since 1940 (Corman 1992).
    A number of factors contributed to the decline of the falcon 
throughout its range, including pesticide contamination, habitat 
destruction, habitat modification, and stream channelization that 
reduced riparian foraging habitat (Hector 1987, Service 1990). Habitat 
changes brought about through cattle grazing and agricultural practices 
may have caused some decline in population numbers and distribution. 
Pesticide exposure was probably the most significant cause of the 
species extirpation from the United States with the initiation of 
widespread DDT (dichloro-diphenyl-trichloroethane) use after World War 
II coinciding with the species disappearance (51 FR 6686, February 25, 
1986). Falcons in Mexico in the 1950s were heavily contaminated with 
DDT residue, and these levels were likely responsible for a 25 percent 
decrease in eggshell thickness (Kiff et al. 1980). Such high residue 
levels are likely to cause reproductive failure through egg breakage 
(Service 1990). Currently, the continued pesticide influence, shrub 
encroachment into Chihuahuan grasslands, low densities of avian prey in 
some areas, and the increased presence of the great-horned owl (Bubo 
virginianus), which preys upon the falcon, may be limiting recovery of 
the species.
    Sporadic sightings of falcons have occurred in New Mexico with 
sightings from every decade since the 1970s (Williams 1997). It appears 
that at least some of these sightings may be juvenile birds that are 
dispersing from existing populations in the Mexican state of Chihuahua. 
Any significant natural re-colonization of habitats in Arizona and New 
Mexico would likely take decades, if it occurred at all, because the 
reproductive rate of the population in Mexico has declined, possibly 
due to extended drought (Burnham, et al., 2002).
    3. Recovery Efforts: The recovery plan for the falcon was published 
in June 1990 (U.S. Fish and Wildlife Service 1990). The recovery plan's 
short-term goal was to downlist the falcon from endangered to 
threatened by achieving a self-sustaining population of 60 breeding 
pairs in the United States. Although no specific goals have been set 
for delisting the falcon, the recovery plan outlines six objectives to 
be implemented to reach the downlisting goal, including ``reestablish 
the falcon in the U.S. and Mexico'' (U.S. Fish and Wildlife Service 
1990). The establishment of successfully reproducing falcons 
distributed across their historical range is critical to the recovery 
of this species. The recovery plan notes that private lands may be 
needed to fully recover falcons. The approach and techniques we propose 
to use (see section 5. ``Reintroduction Procedures'' below) have been 
successful for other species, including the peregrine falcon (Falco 
peregrinus), California condor (Gymnogyps californianus), harpy eagle 
(Harpia harpyja), and Mauritius kestrel (Falco punctatus).
    Northern aplomado falcon recovery efforts started when 25 nestling 
falcons were brought into captivity from populations in Veracruz, 
Tabasco, Campeche, and Chiapas, Mexico, beginning in 1977, and were 
transferred in 1983 to the Peregrine Fund's facility in Boise, Idaho. 
Since 1985, falcons have been propagated and reintroduced to southern 
Texas on and around the Laguna Atascosa National Wildlife Refuge (NWR) 
and Matagorda Island NWR under a Safe Harbor Agreement with The 
Peregrine Fund. A released pair nested and fledged one young on Port of 
Brownsville land in extreme southern Texas in 1995. In 1996, four 
territorial pairs produced three fledglings in the same vicinity (P. 
Jenny, The Peregrine Fund, pers. comm., 1996). These reintroduced 
falcons were the first known successful nestings in the United States 
since the last recorded nesting near Deming, New Mexico, in 1952 (Ligon 
    There are currently 46 pairs in the captive population, which 
produce over 100 young per year. From this captive population, 1,004 
captive-bred falcons have been released in Texas. The Peregrine Fund 
conducted a pilot release project in Texas during 1985-1989, and 
increased restoration efforts began in 1993. These releases have 
established at least 39 pairs in south Texas and adjacent Taumalipas, 
Mexico, where no pairs had been recorded since 1942 (Jenny, pers. comm. 
2004). Moreover, established pairs began breeding in 1995, and have 
successfully fledged more than 179 young (Jenny, pers. comm. 2004). 
Nests were located on a variety of structures both man-

[[Page 6822]]

made and natural. Predation from the great-horned owl (Bubo 
virginianus), raccoon (Procyon lotor), and coyote (Canis latrans) is 
significant, affecting more than half of all nesting attempts (Jenny 
    Beginning in 2002, falcons have been released in west Texas, also 
under the Safe Harbor Agreement with The Peregrine Fund. One hundred 
and twenty-five young have been released at four sites on private 
ranches near Valentine, Texas (Jenny, pers. comm. 2004). In 2003, 
despite great-horned owl predation, at least 25 young (71 percent) 
reached independence (Jenny 2003). Nesting productivity increased by 
approximately 40 percent in 2003 and 2004 when falcons were provided 
artificial nesting structures with barred sides arranged so that 
falcons can enter the nest while predators cannot (Jenny, pers. comm. 
2004). Pairs of falcons in south Texas successfully fledged young where 
they had never been successful prior to the use of the new artificial 
nests (Jenny, pers. comm. 2004).
    Releases in Texas have occurred on private property under Safe 
Harbor Agreement permits (i.e., agreements between a private land owner 
and the Service which permit future incidental taking of listed species 
on their private land) with an enrollment of more than 1.4 million 
acres. Releases have also occurred on Laguna Atascosa, Matagorda 
Island, and Aransas NWRs in Texas. We believe that it is possible to 
accelerate the establishment of a breeding population in the Southwest 
through releases of captive-raised birds. The experience in Texas, 
where the population went from 0 birds in 1994, to at least 37 pairs 
that had produced at least 92 young by 2002, illustrates the rapidity 
with which a population can be established through releases. Despite 
the relative success of the falcon releases in Texas, we believe the 
Safe Harbor Agreements used to release falcons in Texas are not the 
best mechanism for establishing falcons in New Mexico and Arizona. Safe 
Harbor Agreements can only be developed for private land owners. There 
is a vast amount of public land in New Mexico and Arizona (about 40 
percent in the proposed reintroduction area). Therefore, the public 
land will be very important for recovery of the falcon in this area. 
Not only is the public land important because of its high percentage in 
the NEP area, but it is important because of its habitat 
characteristics. We believe there is very low probability that falcons 
will populate lands outside their historic range because their 
behavioral ecology is not adapted to survival in those habitats. The 
historic range in the NEP area is Chihuahuan desert grassland, and 
public lands make up a higher percentage of the Chihuahuan desert 
grassland than does private land (Young, K.E. and others, 2002).
    In New Mexico, standardized falcon surveys have been conducted 
annually on Department of Defense land (White Sands Missile Range and 
Fort Bliss) over the last decade (U.S. Fish and Wildlife Service FO 
records, Albuquerque, NM). Armenderis Ranch in New Mexico and areas 
immediately adjacent to known falcon habitat (south of Deming, New 
Mexico) have been similarly surveyed, and surveys were conducted last 
year on Gray Ranch in New Mexico (USFWS FO records, Albuquerque, NM). 
After a 50-year absence, a nesting attempt was documented in Luna 
County, New Mexico, in the spring of 2001 (Ray Meyer, La Tierra 
Environmental Services, pers. comm. 2004). In 2002, this pair 
successfully fledged three chicks (Meyer, pers. comm. 2004). In 2003, 
only a single female was seen in the area of the 2002 nest (Meyer, 
pers. comm. 2004). In 2004, a pair of falcons was seen on one 
monitoring site visit and a single falcon was seen on several other 
    We do not consider the 2002 nesting pair and any offspring produced 
as a population. Based on definitions of ``population'' used in other 
experimental population rules (see the November 22, 1994, final rule 
for reintroduction of gray wolves to Yellowstone National Park (59 FR 
60252)), we believe that a determination that a falcon population 
already exists in a designated area would require a minimum of two 
successfully-reproducing falcon pairs over multiple years. 
Biologically, the term ``population'' is not normally applied to a 
single pair, and so the few birds in New Mexico could be considered 
emigrants disconnected from the Chihuahuan population. Also, two, or 
even three, birds are not considered a self-sustaining population. 
Self-sustaining populations need a sufficient number of individuals to 
avoid inbreeding depression and occurrences of chance local extinction; 
this can range from 50 to 500 breeding individuals, according to 
minimum viable population theory (Soule, M.E. (ed.) 1987).
    4. Reintroduction Sites: Falcons historically occurred in 
Chihuahuan desert grasslands within the proposed NEP area, and habitats 
in the release areas are similar to those that support nesting falcons 
in northern Mexico populations. Primary considerations for identifying 
falcon release sites include areas: (1) Within or in proximity to 
potentially suitable habitat, including open grassland habitats that 
have scattered trees/shrubs/yucca for nesting and perching; (2) 
supporting available prey (i.e., insects, small to medium-sized birds, 
and rodents) to support falcons; (3) with minimal natural and man-made 
hazards (i.e., predators, open-water tanks) and potential hazards 
should be addressed and minimized where practical; (4) with access for 
logistical support; (5) with sufficient potentially suitable habitat 
surrounding a potential release site and its proximity to other similar 
habitats; and (6) with a willing landowner or land manager.
    While the NEP area will include both Arizona and New Mexico, 
release sites will only be on lands within New Mexico. Release sites 
within the proposed NEP area shall be selected to increase the 
distribution of the population and its rate of growth. Selection will 
be based upon suitability and extent of available habitat, as well as 
any dispersal patterns from prior releases. Released falcons are 
expected to move around within the areas of their release, but may 
disperse to more distant areas. The 10(j) designation and supporting 
4(d) rule cover both private and public lands in New Mexico and 
Arizona, so Safe Harbor Agreements will not be necessary with private 
landowners. If finalized, incidental take will be authorized through 
this rule.
    5. Reintroduction Procedures: The rearing and release techniques to 
be used in establishing this NEP have proven successful in establishing 
a wild population of falcons in southern Texas. Falcons will be raised 
in The Peregrine Fund's captive propagation facility in Boise, Idaho. 
Newly hatched falcon chicks are fed by hand in sibling groups for up to 
25 days. They are then raised in sibling groups with minimal human 
exposure until their transportation to a release site at 32-37 days of 
age. Falcons are then shipped by air between Boise and the release 
locations, and driven to the release site (hack site). At the release 
site, the falcons are placed in a protective box on top of a 
conspicuous tower and fed for 7 to 10 days. The box is then left open 
and falcons are allowed to come and go freely. Food is provided on the 
tower and, initially, the falcons return each day to feed. Eventually 
the falcons begin chasing prey, making their own kills, and spending 
more and more time away from the hack site. A falcon is considered to 
be ``successfully released'' when it is no longer dependent on food 
provided at the release site. This process generally takes from 3 to 6 
weeks (Jenny 2003). The hack site attendants will evaluate the

[[Page 6823]]

progress of the released falcons. The release process can be extended 
to ensure a successful release or a bird may be returned to the 
propagation facility in Boise if it does not attain independence.
    Falcons will be released in groups of 5 to 7 similarly-aged 
nestlings with the total annual release not to exceed 150 birds. Within 
a single year, multiple releases may occur at a single release site. 
Allowing multiple releases from a single site increases chances of 
establishing breeding pairs and also allows released birds to learn 
from independent birds that are already established on the site. 
Juvenile falcons are reasonably gregarious and problems of aggression 
at release sites in southern Texas have not generally developed until 
adult pairs become established. The Service believes that the 
techniques described above, and implemented successfully in southern 
Texas, will also be successful in New Mexico. We anticipate releasing 
falcons for 10 or more years.
    6. Status of Reintroduced Population: We propose this reintroduced 
population to be nonessential to the continued existence of the species 
according to the provisions of section 10(j) of the Act. We have 
concluded that this experimental population is nonessential to the 
continued existence of the falcon for the following reasons:
    (a) With at least three populations, one in eastern Mexico, a 
second in northern Chihuahua, Mexico, and a third becoming established 
in southern Texas, the experimental population is not essential to the 
continued existence of the species. The threat of extinction from a 
single catastrophic event has been reduced by a gradual increase of the 
southern Texas and captive populations. Thus, loss of the experimental 
population will not appreciably reduce the likelihood of falcon 
survival in the United States, and
    (b) Any birds lost during the reintroduction attempt can be 
replaced through captive breeding. Production from the extant captive 
flock is already sufficient to support the release of birds that would 
occur under this proposed rule, in addition to continued releases into 
south and west Texas.
    We fully expect that the proposed NEP will result in the 
establishment of a self-sustaining, resident population, which will 
contribute to the recovery of the species. We expect this 
reintroduction to be compatible with current or planned human 
activities in the release area. There have been no reported conflicts 
between human activities and falcons in Texas, where 1,004 falcons have 
been released over the course of 18 years (Jenny, pers. comm. 2004). If 
the actions carried forward as a result of this proposed rule fail to 
demonstrate sufficient success toward recovery, as determined by the 
Service, then the Service, in coordination with other Federal land 
managers, the States of Arizona and New Mexico, and private 
collaborators, would reevaluate management strategies.
    Although uncertainties regarding the reintroduction of the proposed 
NEP exist, the success of the southern Texas reintroduction suggests 
that this effort will succeed. Based on that experience, we have good 
reason to believe that appropriately managed captive-reared birds are 
suitable for release into the wild and can survive and successfully 
reproduce. Although prey-base biomass (g/ha) may be lower throughout 
the proposed NEP area than in south Texas, prey-base biomass (g/ha) in 
the proposed NEP area is similar to occupied habitat in Chihuahua, 
Mexico, where the falcons consume primarily birds (Truett 2002). 
Further, the establishment of a third, wild, self-sustaining population 
provides further assurances that the species will survive in the United 
States. For example, if the Texas population was significantly affected 
by catastrophic events such as a Gulf coast hurricane, the NEP in New 
Mexico would provide a buffer for the species in the wild while the 
Texas population recovered.
    7. Location of Reintroduced Population: Section 10(j) of the Act 
requires that an experimental population be geographically separate 
from other populations of the same species. The proposed NEP area 
covers all of New Mexico and Arizona, with the expectation that falcons 
would only persist within the Chihuahuan Desert, which extends north 
from Mexico into southern Texas, southern New Mexico and southeast 
Arizona. The NEP area is geographically isolated from existing falcon 
populations in Mexico and Texas by a sufficient distance to preclude 
significant contact between populations. Although no falcons have been 
documented in Arizona since the 1940s, sporadic falcon sightings have 
occurred in New Mexico. Most recently, breeding was documented in Luna 
County, New Mexico, in 2001 and 2002 (Meyer, pers. comm. 2003). 
However, we do not believe the presence of these falcons meets a 
minimal definition of a population as stated in section 3 ``Recovery 
Efforts'' above.
    It is difficult to predict where individual falcons may disperse 
following release within the proposed NEP area. A 70-day old male 
falcon dispersed 136 kilometers (km) (84.5 miles (mi)) from a hack site 
in Texas (Perez et al.1996), and a falcon banded in Chihuahua, Mexico, 
was observed 250 km (155 mi) north in New Mexico (A. Montoya, The 
Peregrine Fund, pers. comm.). Perez et al. (1996) placed radio 
transmitters on 14 falcons in Texas and found home range size varied 
from 36-281 square km (km\2\) (14-108.5 square mi). Designation of a 
large NEP area around planned release sites allows for the possible 
occurrence of falcons in a large geographic area. Any falcon found 
within the NEP area will be considered part of the experimental 
    It is possible that some captive-bred falcons from Texas, or their 
progeny, could disperse into the NEP. Under the proposed rule, any 
falcon within the NEP shall be treated as a part of the NEP. Such 
treatment affords birds originating from Safe Harbor releases in Texas 
essentially the same treatment as they receive when on Safe Harbor 
properties (i.e., unknowing take would not be prosecuted), and is 
generally consistent with the Service's June 17, 1999, Safe Harbor 
Policy to ``use the maximum flexibility allowed under the Act in 
addressing neighboring properties under Safe Harbor Agreements'' (64 FR 
    8. Management: (a) Monitoring: The Service is developing a 
monitoring plan, and it will be finalized prior to publishing a final 
rule. It will be available from the Service (see ADDRESSES section). 
The Service, The Peregrine Fund, Turner Endangered Species Fund, and 
other cooperators will monitor the success of the release program in 
New Mexico. Falcons will be observed daily before they are released. 
Facilities for release of the birds will be modeled after facilities 
used for falcons in Texas. Information on survival of released birds, 
movements, behavior, reproductive success, and causes of any losses, 
will be gathered during the duration of the proposed program. Program 
progress will be summarized and reported annually at stakeholder 
meetings. We plan to evaluate the progress of the program every 5 
years. Telemetry may be used to monitor falcon movements. Blood samples 
may be taken to monitor contaminant levels.
    (b) Disease: The Peregrine Fund has raised aplomado falcons since 
1977. In 1996, a novel systemic adenovirus killed 57 chicks. The 
outbreak was controlled and transmission arrested. Maintenance and 
hygiene at the Boise, Idaho, captive rearing facility is more than 
sufficient to prevent and/or contain a similar outbreak (B. Rideout, 
Head of Pathology, Center for Reproduction of Endangered Species, San 

[[Page 6824]]

Zoological Society, San Diego, California, pers. comm. 2003).
    (c) Genetics: The captive flock is managed to maintain and maximize 
genetic diversity (The Peregrine Fund Operation Reports, 1993-2003).
    (d) Mortality: The Act defines ``incidental take'' as take that is 
incidental to, and not the purpose of, the carrying out of an otherwise 
lawful activity such as military training, livestock grazing, 
recreation, and other activities that are in accordance with Federal, 
Tribal, State, and local laws and regulations. A person may take a 
falcon within the proposed NEP area provided that the take is 
unintentional and was not due to negligent conduct. Unintentional take 
will be considered ``incidental take,'' and will be authorized under 
the proposed rule. We expect levels of incidental take to be low since 
the reintroduction is compatible with existing land use practices for 
the area.
    When we have evidence of knowing (i.e., intentional) take of a 
falcon, we will refer matters to the appropriate authorities for 
investigation. Knowing, or intentional take, refers to actions such as 
shooting, purposeful destruction of active nests, or harassment of 
falcons from active nests for purposes other than those described in 
section (e) ``Special Handling'' below. Any take of a falcon, whether 
incidental or not, must be reported to the local Service Field 
Supervisor (see ADDRESSES section).
    (e) Special Handling: The Service, New Mexico Department of Game 
and Fish (NMDGF) and Arizona Game and Fish Department (AGFD) employees, 
and their agents (including employees and agents of The Peregrine Fund) 
are authorized, when permitted by the Service (50 CFR parts 13, 21, and 
17.32), to: (1) Relocate falcons to avoid conflict with human 
activities; (2) relocate falcons that have moved outside the proposed 
NEP area when removal is necessary or requested; (3) relocate falcons 
within the proposed NEP area to improve survival and recovery 
prospects; (4) aid animals that are sick, injured, or otherwise in need 
of special care; and (5) monitor and band falcons. Employees of the 
Service, in consultation with NMDGF and AGFD employees and their agents 
(including employees and agents of The Peregrine Fund), can determine 
if a falcon is unfit to remain in the wild and should be returned to 
captivity, and are authorized by permit (as above) to salvage dead 
falcons. When falcons are handled, blood may be taken for 
physiological, environmental contaminant, and/or genetic analysis.
    (f) Coordination with Landowners and Land Managers: The Service and 
cooperators have identified issues and concerns associated with the 
proposed falcon reintroduction through the National Environmental 
Policy Act (NEPA) scoping comment period. The proposed reintroduction 
also has been discussed with potentially affected State agencies and 
some private landowners wishing to have falcons released on their 
property. Affected State agencies, landowners, and land managers have 
indicated support for the proposed reintroduction, provided falcons 
released in the proposed NEP area are established as nonessential and 
land use activities in the proposed NEP area are not constrained 
without the consent of affected landowners.
    (g) Potential for Conflict with Military, Industrial, Agricultural 
and Recreational Activities: We do not expect conflicts between falcon 
management and agricultural, oil and gas development, military, or 
recreational activities. These activities on private or military lands 
within the proposed NEP area will continue without additional 
restrictions during implementation of the falcon reintroduction 
activities. With proper management, we do not expect adverse impacts to 
falcons from agricultural, oil and gas development, military, or 
recreational activities in the proposed NEP area. If proposed 
agricultural, oil and gas development, military, or recreational 
activities may affect the falcon's prey base within release areas, 
State, Tribal, and/or Federal biologists can determine whether falcons 
could be impacted and, if necessary, work with the other agencies and 
stakeholders in an attempt to avoid such impacts. If private activities 
impede the establishment of falcons, we will work closely with the 
State, Tribe, and/or landowners to suggest alternative procedures to 
minimize conflicts. The States of Arizona and New Mexico are not 
directed by this proposed rule to take any specific actions to provide 
any special protective measures, nor are they prevented from imposing 
restrictions under State law, such as protective designations and area 
closures. Neither of the States within the proposed NEP area, both of 
which are participants in the northern aplomado falcon working group, 
has indicated that they would propose hunting restrictions or closures 
related to game species because of the falcon reintroduction. There 
have been no reported conflicts between human activities and falcons in 
Texas, where 1,004 falcons have been released over the course of 18 
years (Jenny, pers. comm. 2004).
    Overall, the presence of falcons is not expected to result in 
restrictions or constraints on the hunting of wildlife or to affect 
economic benefits that landowners might receive from hunting leases. 
The action will not affect the establishment of future hunting seasons 
or conservation actions approved for other migratory bird species. 
There will be no federally mandated hunting area or season closures or 
season modifications resulting from the establishment of the NEP. 
Conflicts with upland bird hunting in the release area are not 
anticipated since neither of the States within the proposed NEP area 
has indicated that they would propose hunting restrictions or closures 
related to game species because of the falcon reintroduction.
    The principal activities on private property near the initial 
release areas are agriculture and recreation. We do not believe that 
use of these private properties by falcons will preclude such private 
uses because these activities and the falcon's needs do not conflict 
with each other.
    Released falcons might wander into other parts of the proposed NEP 
area or even outside the NEP area. We believe the frequency of 
movements outside the proposed NEP area is likely to be very low based 
on the experience with falcon reintroduction in Texas (Burnham, et al. 
2002). Any falcons outside the proposed NEP area will be considered 
endangered under the Act. Any falcons that occur within the proposed 
NEP area will be considered part of the proposed NEP and will be 
subject to the protective measures in place for the proposed NEP. The 
decreased level of protections afforded to falcons that cross into the 
proposed NEP is not expected to have any significant adverse impacts to 
the wild population, since we do not anticipate this to occur very 
    (h) Protection of Falcons: We will release falcons in a manner that 
provides short-term protection from natural predators, and human-
related sources of mortality. Improved release methods, and 
discouraging predators, should help reduce natural mortality. Releasing 
falcons in areas with little human activity and development will 
minimize human-related sources of mortality. Should causes of mortality 
be identified, we will work with the State, Tribe, and/or landowners to 
correct the problem.(h)
    (i) Potential for Conflict with Natural Recolonization of Falcons: 
Natural, i.e., unaided, falcon recolonization of New Mexico and Arizona 
would be dependent on dispersing falcons from

[[Page 6825]]

Mexico, Texas, or possibly unknown nesting pairs within the United 
States. We do not consider the unaided recolonization of falcons in the 
proposed NEP area a likely occurrence for a number of reasons. The 
half-century absence of falcons in Arizona and New Mexico suggests that 
the Chihuahua, Mexico, falcon population cannot recolonize New Mexico 
and Arizona with sufficient numbers to establish a population. The low 
fledging success in Chihuahua, and stable or declining breeding numbers 
there since observations first began in 1992 (Montoya et al. 1997), 
suggest that birds in this area are not likely to provide enough 
dispersers to populate New Mexico. We do not consider the presence of 
the documented 2001 and 2002 breeding pair in Luna County to represent 
a population. Although there may be occasional falcon dispersal 
movements from Mexico to New Mexico, we do not believe this will lead 
to the establishment of a viable population within New Mexico. Given 
the lack of a falcon population in the action area, and the low 
probability that falcons from Chihuahua, Mexico, can recolonize New 
Mexico, we believe that releases are needed in order to establish a 
resident falcon population in the U.S. Chihuahuan desert grasslands.
    If natural recolonization does occur in significant numbers, then 
we may amend this rule. However, we do not think this action will be 
necessary since any falcons that occur in the proposed NEP area will be 
considered part of the proposed NEP and will be subject to the 
protective measures in place for the proposed NEP.
    (j) Public Awareness and Cooperation: We will inform the general 
public of the importance of this reintroduction project in the overall 
recovery of the falcon. The designation of the proposed NEP for New 
Mexico and Arizona would provide greater flexibility in the management 
of reintroduced falcons. The proposed NEP designation is necessary to 
secure needed cooperation of the States, Tribes, landowners, agencies, 
and other interests in the proposed NEP area. As mentioned before, 
despite the relative success of the falcon releases in Texas, we 
believe the Safe Harbor Agreements used to release falcons in Texas are 
not the best mechanism for establishing falcons in New Mexico and 
Arizona. Safe Harbor Agreements can only be developed for private land 
owners, whereas there is a vast amount of public land in New Mexico and 
Arizona (about 40 percent in the reintroduction area). Therefore, the 
proposed NEP designation will facilitate the recovery of the falcon on 
this public land, as well as on private land. As mentioned under the 
``Legislative'' section above, a NEP designation requires consultations 
under section 7(a)(2) only for National Wildlife Refuges and units of 
the National Park System. All other Federal actions only require the 
Federal action agency to confer with us under section 7(a)(4); the 
results of which are advisory in nature and do not restrict agencies 
from carrying out, funding, or authorizing activities. The opportunity 
for greater discretion in developing management programs or conducting 
other activities in a NEP area can be appealing to Federal agencies and 
the general public.
    Based on the above information, and using the best scientific and 
commercial data available (in accordance with 50 CFR 17.81), the 
Service finds that creating a NEP of northern aplomado falcons and 
releasing them into the NEP area will further the conservation of the 

Public Hearings

    The Act provides for one or more public hearings on this proposed 
rule, if requested. Given the likelihood of a request, we have 
scheduled one public hearing. We will hold a public hearing as 
specified above in DATES and ADDRESSES. Announcements for the public 
hearing will be made in local newspapers.
    Public hearings are designed to gather relevant information that 
the public may have that we should consider in our rulemaking. During 
the hearing, we will present information about the proposed action. We 
invite the public to submit information and comments at the hearing or 
in writing during the open public comment period. We encourage persons 
wishing to comment at the hearing to provide a written copy of their 
statement at the start of the hearing. This notice and public hearing 
will allow all interested parties to submit comments on the proposed 
NEP rule for the falcon. We are seeking comments from the public, other 
concerned governmental agencies, Tribes, the scientific community, 
industry, or any other interested parties concerning the proposal. 
Persons may send written comments to the New Mexico Ecological Services 
Field Office (see ADDRESSES section) at any time during the open 
comment period. We will give equal consideration to oral and written 

Peer Review

    In accordance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we will provide copies of this proposed rule to 
three appropriate and independent specialists in order to solicit 
comments on the scientific data and assumptions relating to the 
supportive biological and ecological information for this proposed NEP 
rule. The purpose of such review is to ensure that the proposed NEP 
designation is based on the best scientific information available.
    We will invite these peer reviewers to comment during the public 
comment period. We will consider all comments and information received 
during the comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in Executive Order 12866, this 
proposed rule is not a significant regulatory action subject to Office 
of Management and Budget review. As described below, this rule will not 
have an annual economic effect of $100 million or more on the economy 
and will not have an adverse effect on an economic sector, 
productivity, competition, jobs, the environment, or other units of 
government. Therefore, a cost-benefit and full economic analysis will 
not be required.
    Following release, birds may use private or public lands adjacent 
to release areas. Because of the substantial regulatory relief provided 
by the proposed NEP designation (no penalties for unintentional take or 
restrictions against land use), we do not believe the reintroduction of 
falcons will conflict with existing human activities or hinder public 
or private use of lands within the NEP area. Likewise, no governments, 
individuals, or corporations will be required to specifically manage 
for reintroduced falcons.
    This proposed rule will not create inconsistencies with other 
agency's actions or otherwise interfere with an action taken or planned 
by another agency. Federal agencies most interested in this rulemaking 
are the Bureau of Land Management (BLM) and Department of Defense (DOD) 
because they manage large areas of suitable falcon habitat within the 
proposed NEP area. These agencies participated in the northern aplomado 
falcon working group and had the opportunity for development and review 
of the resulting action proposed by this rulemaking, so as to have it 
consistent with their land management plans. Because of the substantial 
regulatory relief provided by

[[Page 6826]]

the NEP designation, we believe that the reintroduction of northern 
aplomado falcons in the areas described will not conflict with existing 
human activities or hinder public utilization of the area.
    This proposed rule will not materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients. Because there are no expected impacts or restrictions to 
existing human uses of the NEP area as a result of this proposed rule, 
no entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients are expected to occur.
    This proposed rule does not raise novel legal or policy issues. 
Since 1984, we have promulgated section 10(j) rules for many other 
species in various localities. Such rules are designed to reduce the 
regulatory burden that would otherwise exist when reintroducing listed 
species to the wild.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
804(2)), whenever a Federal agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. We are certifying that this rule will not have a significant 
economic effect on a substantial number of small entities. The 
following discussion explains our rationale.
    The area affected by this proposed rule includes the States of 
Arizona and New Mexico. We do not expect this rule to have any 
significant effect on recreational, agricultural, or development 
activities within the proposed NEP area because the proposed NEP 
designation provides no restrictions on most Federal (see next 
paragraph for National Wildlife Refuges and units of the National Park 
System) and all non-Federal actions that may affect falcons. In 
addition, the special rule authorizes unknowing or incidental take of 
falcons (i.e., take that is incidental to an otherwise lawful 
activity). Direct take for research or educational purposes would 
require a section 10 recovery permit. Knowing take (such as shooting) 
would not be permitted. The action will not affect the establishment of 
future hunting seasons or conservation actions approved for migratory 
bird species. The principal activities on private property near the 
initial release areas are agriculture and recreation. We believe the 
presence of the falcon will not preclude use of lands for these 
purposes. Because there will be no new or additional economic or 
regulatory restrictions imposed upon States, Federal agencies, or 
members of the public due to the presence of the falcon, this 
rulemaking is not expected to have any significant adverse impacts to 
recreation, agriculture, or any development activities.
    For the purposes of section 7 of the Act, we treat NEPs as 
threatened species when the NEP is located within a National Wildlife 
Refuge or unit of the National Park System, and section 7(a)(1) and the 
consultation requirements of section 7(a)(2) of the Act apply. Section 
7(a)(1) requires all Federal agencies to use their authorities to 
conserve listed species. Section 7(a)(2) requires that Federal 
agencies, in consultation with the Service, ensure any actions they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of a listed species or adversely modify its 
critical habitat. When NEPs are located outside a National Wildlife 
Refuge or unit of the National Park System, we treat the population as 
proposed for listing and only two provisions of section 7 would apply: 
Section 7(a)(1) and section 7(a)(4). In these instances, NEPs provide 
additional flexibility because Federal agencies are not required to 
consult with us under section 7(a)(2). Section 7(a)(4) requires Federal 
agencies to confer with the Service on actions that are likely to 
jeopardize the continued existence of a proposed species. The results 
of a conference are advisory in nature and do not restrict agencies 
from carrying out, funding, or authorizing activities.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    1. On the basis of information contained in the ``Required 
Determinations'' section above, this rule will not ``significantly or 
uniquely'' affect small governments. We have determined and certify 
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., 
that this proposed rulemaking will not impose a cost of $100 million or 
more in any given year on local or State governments or private 
entities. A Small Government Agency Plan is not required. As explained 
above, small governments will not be affected because the proposed NEP 
designation will not place additional requirements on any city, county, 
or other local municipalities.
    2. This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act). This proposed NEP 
designation for the falcon will not impose any additional management or 
protection requirements on the States or other entities.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the proposed rule does 
not have significant takings implications. We do not expect this 
proposed rule to have a potential takings implication under Executive 
Order 12630 because it would exempt individuals or corporations from 
prosecution for take that is accidental and incidental to an otherwise 
lawful activity. Because of the substantial regulatory relief provided 
by the NEP designation, we do not believe the reintroduction of falcons 
would conflict with existing or proposed human activities or hinder 
public use of lands within the proposed NEP area. Neither of the States 
within the proposed NEP area will be required to specifically manage or 
reintroduce falcons.
    A takings implication assessment is not required because this rule 
(1) will not effectively compel a property owner to suffer a physical 
invasion of property and (2) will not deny all economically beneficial 
or productive uses of the land or aquatic resources. This rule will 
substantially advance a legitimate government interest (conservation 
and recovery of a federally listed bird) and will not present a barrier 
to all reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule has significant Federalism effects and have 
determined that a Federalism assessment is not required. This rule will 
not have substantial direct effects on the States, in the relationship 
between the Federal Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
In keeping with

[[Page 6827]]

Department of the Interior policy, we requested information from and 
coordinated development of this proposed rule with the affected 
resource agencies in New Mexico and Arizona. Achieving the recovery 
goal for this species will contribute to its eventual delisting and its 
return to primary State management. No intrusion on State policy or 
administration is expected; roles or responsibilities of Federal or 
State governments will not change; and fiscal capacity will not be 
substantially directly affected. The special rule operates to maintain 
the existing relationship between the States and the Federal Government 
and is being undertaken in coordination with the States. Therefore, 
this rule does not have significant Federalism effects or implications 
to warrant the preparation of a Federalism Assessment pursuant to the 
provisions of Executive Order 13132.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988 (February 7, 1996; 61 FR 
4729), the Office of the Solicitor has determined that this rule would 
not unduly burden the judicial system and would meet the requirements 
of sections 3(a) and 3(b)(2) of the Order. We establish experimental 
populations in accordance with section 10(j) of the Act.

Government-to-Government Relationship With Tribes

    In accordance with Secretarial Order 3206, American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act (June 5, 1997); the President's memorandum of April 29, 
1994, Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951); Executive Order 13175; and the Department of 
the Interior's requirement at 512 DM 2, we have notified the Native 
American Tribes within the NEP area about this proposal. They have been 
advised through verbal and written contact, including informational 
mailings from the Service. Information was also presented to the Native 
American Fish and Wildlife Society in 2003 (Maureen Murphy, USFWS, 
pers. comm. 2004). If future activities resulting from this proposed 
rule may affect Tribal resources, the Service will communicate and 
consult on a Government-to-Government basis with any affected Native 
American Tribes in order to find an agreement.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, 
which implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.) require that Federal agencies obtain approval from OMB 
before collecting information from the public. This proposed rule 
contains information collection activity for experimental populations. 
The Fish and Wildlife Service has Office of Management and Budget 
approval for the collection under OMB Control Number 1018-0095. The 
Service may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

    We have prepared a draft environmental assessment (EA) as defined 
under the authority of the National Environmental Policy Act of 1969. 
It is available from the New Mexico Ecological Services Field Office 
(see ADDRESSES section). We published a notice of intent to prepare an 
EA and a notice of public scoping meetings in the January 27, 2003, 
Federal Register (68 FR 3889)

Energy Supply, Distribution or Use (E.O. 13211)

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

Clarity of This Regulation (E.O. 12866)

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this proposed rule easier to understand including answers to questions 
such as the following: (1) Are the requirements in the proposed rule 
clearly stated? (2) Does the proposed rule contain technical language 
or jargon that interferes with its clarity? (3) Does the format of the 
proposed rule (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce its clarity? (4) Would the proposed 
rule be easier to understand if it were divided into more (but shorter) 
sections? (5) 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 your comments concerning how 
we could make this proposed rule easier to understand to: Office of 
Regulatory Affairs, Department of the Interior, Room 7229, 1849 C 
Street NW., Washington, DC 20240. You may also e-mail your comments to: 

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the New Mexico Ecological Services Field 
Office (see ADDRESSES section).


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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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


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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec.  17.11(h) by revising the existing entry for 
``Falcon, northern aplomado'' under ``BIRDS'' to read as follows:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 6828]]

                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened

                                                                      * * * * * * *

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

                                                                      * * * * * * *

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

Sec.  17.84  Special rules--vertebrates.

* * * * *
    (o) Northern aplomado falcon (Falco femoralis septentrionalis).
    (1) The northern aplomado falcon (Falco femoralis septentrionalis) 
(falcon) population identified in paragraph (o)(9)(i) of this section 

is a nonessential experimental population (NEP).
    (2) No person may take this species, except as provided in 
paragraphs (o)(3) through (5) and (o)(10) of this section.
    (3) Any person with a valid permit issued by the U.S. Fish and 
Wildlife Service (Service) under Sec.  17.32 may take falcons for 
educational purposes, scientific purposes, the enhancement of 
propagation or survival of the species, zoological exhibition, and 
other conservation purposes consistent with the Endangered Species Act 
    (4) A falcon may be taken within the NEP area, provided that such 
take is incidental to and not the purpose of, the carrying out of an 
otherwise lawful activity; and that such taking is reported as soon as 
possible as provided under paragraph (o)(6) of this section.
    (5) Any employee or agent of the Service, New Mexico Department of 
Game and Fish, Arizona Game and Fish Department, or The Peregrine Fund, 
who is designated for such purpose may, when acting in the course of 
official duties, take a falcon if such action is necessary to:
    (i) Aid a sick, injured, or orphaned specimen;
    (ii) Dispose of a dead specimen, or salvage a dead specimen that 
may be useful for scientific study;
    (iii) Move a bird within the NEP area for genetic purposes or to 
improve the health of the population; or
    (iv) Relocate falcons that have moved outside the NEP area, by 
returning the falcon to the NEP area or moving it to a captive breeding 
facility. All captures and relocations from outside the NEP area will 
be conducted with the permission of the landowner(s) or appropriate 
land management agencies.
    (v) Collect nesting data or band individuals.
    (6) Any taking pursuant to paragraphs (o)(3) through (5) of this 
section must be reported as soon as possible by calling the U.S. Fish 
and Wildlife Service, New Mexico Ecological Services Field Office, 2105 
Osuna NE, Albuquerque, NM 87113; (505) 346-2542. Upon contact, a 
determination will be made as to the disposition of any live or dead 
    (7) No person shall possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any such species taken in 
violation of these regulations.
    (8) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to be committed, any offense defined in 
paragraphs (o) (2) and (7) of this section.
    (9)(i) The boundaries of the designated NEP area are based on 
county borders and include the entire States of New Mexico and Arizona. 
The release area is within the historic range of the species. Release 
sites will be in New Mexico.
    (ii) All falcons found in the wild within the boundaries of the NEP 
area after the first releases will be considered members of the NEP. A 
falcon occurring outside of the NEP area is considered endangered under 
the Act unless it is marked or otherwise known to be a member of the 
    (iii) The Service has designated the NEP area to accommodate the 
potential future movements of a wild population of falcons. All 
released birds and their progeny are expected to remain in the NEP area 
due to the geographic extent of the designation.
    (10) The NEP will be monitored closely for the duration of the 
program, generally using radio telemetry as appropriate. Any bird that 
is determined to be sick, injured, or otherwise in need of special care 
will be recaptured to the extent possible by Service and/or State or 
Tribal wildlife personnel or their designated agent and given 
appropriate care. Such birds will be released back to the wild as soon 
as possible, unless physical or behavioral problems make it necessary 
to return them to a captive breeding facility.
    (11) The Service plans to evaluate the status of the NEP every 5 
years to determine future management status and needs, with the first 
evaluation occurring not more than 5 years after the first release of 
birds into the NEP area. All reviews will take into account the 
reproductive success and movement patterns of individuals released, 
food habits, and overall health of the population.

    Dated: January 26, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-2415 Filed 2-8-05; 8:45 am]