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36. In § 40.329, the section heading Appendix B to Part 40—DOT Drug (b) Uncorrected Flaw (number) and paragraph (b) are revised, to read as Testing Semi-Annual Laboratory or 4. Number of specimens forwarded to an follows: IITF Report to Employers HHS-certified laboratory for additional drug testing and/or specimen validity § 40.329 What information must Laboratory Report to Employer testing. laboratories, MROs, and other service The following items are required on each 39. Appendix C is revised, to read as agents release to employees? laboratory report: follows: * * * * * Reporting Period: (inclusive dates) (b) As a laboratory or IITF, you must Laboratory Identification: (name and address) Appendix C to Part 40—DOT Drug provide, within 10 business days of Employer Identification: (name; may include Testing Semi-Annual Laboratory or receiving a written request from an Billing Code or ID code) IITF Report to DOT employee, and made through the MRO, C/TPA Identification: (where applicable; name and address) Mail, fax, or e-mail to: U.S. Department of the records relating to the results of the 1. Specimen Results Reported (total number) Transportation, Office of Drug and Alcohol employee’s drug test (i.e., laboratory or By Test Reason: Policy and Compliance, W62–300, 1200 New IITF) report and data package). You may (a) Pre-employment (number) Jersey Avenue, SE., Washington, DC 20590, charge no more than the cost of (b) Post-Accident (number) Fax: (202) 366–3897, E-mail: preparation and reproduction for copies (c) Random (number) [email protected]. of these records. (d) Reasonable Suspicion/Cause (number) The following items are required on each laboratory report: * * * * * (e) Return-to-Duty (number) (f) Follow-up (number) 37. In § 40.355, the introductory text, Reporting Period: (inclusive dates) (g) Type of Test Not Noted on CCF Laboratory Identification: (name and address) paragraphs (a) through (c), and (number) 1. DOT Specimen Results Reported (number) paragraph (l) are revised, to read as 2. Specimens Reported 2. Negative Results Reported (number) follows: (a) Negative (number) Negative (number) (b) Negative and Dilute (number) Negative-Dilute (number) § 40.355 What limitations apply to the 3. Specimens Reported as Rejected for 3. Rejected for Testing Reported (number) activities of service agents? Testing (total number) By Reason (number) As a service agent, you are subject to By Reason 4. Positive Results Reported (number) the following limitations concerning (a) Fatal flaw (number) By Drug (number) your activities in the DOT drug and (b) Uncorrected Flaw (number) 5. Adulterated Results Reported (number) alcohol testing program. 4. Specimens Reported as Positive (total By Reason (number) (a) You must not require an employee number) By Drug 6. Substituted Results Reported (number) to sign a consent, release, waiver of (a) Marijuana Metabolite (number) 7. Invalid Results Reported (number) (b) Cocaine Metabolite (number) By Reason (number) liability, or indemnification agreement (c) Opiates (number) The following items are required on each with respect to any part of the drug or (1) Codeine (number) IITF report: alcohol testing process covered by this (2) Morphine (number) part (including, but not limited to, (3) 6–AM (number) Reporting Period: (inclusive dates) collections, laboratory or IITF testing, (d) Phencyclidine (number) IITF Identification: (name and address) MRO, and SAP services). No one may (e) Amphetamines (number) 1. DOT Specimen Results Reported (number) 2. Negative Results Reported (number) do so on behalf of a service agent. (1) Amphetamine (number) (2) Methamphetamine (number) Negative (number) (b) You must not act as an Negative-Dilute (number) intermediary in the transmission of drug (3) MDMA (number) (4) MDA (number) 3. Rejected for Testing Reported (number) test results from the laboratory or IITF (5) MDEA (number) By Reason (number) to the MRO. That is, the laboratory or 5. Adulterated (number) 4. Specimens forwarded to an HHS-certified IITF must not send results to you, with 6. Substituted (number) laboratory for additional testing you in turn sending them to the MRO 7. Invalid Result (number) (number) For Drugs (number) for verification. For example, a practice IITF Report to Employer in which the laboratory or IITF For SVT (number) transmits results to your computer The following items are required on each [FR Doc. 2010–2315 Filed 2–3–10; 8:45 am] IITF report: system, and you then assign the results BILLING CODE P to a particular MRO is not permitted. Reporting Period: (inclusive dates) IITF Identification: (name and address) (c) You must not transmit drug test Employer Identification: (name; may include results directly from the laboratory or Billing Code or ID code) DEPARTMENT OF THE INTERIOR IITF to the employer (by electronic or C/TPA Identification: (where applicable; other means) or to a service agent who name and address) Fish and Wildlife Service forwards them to the employer. All 1. Specimen Results Reported (total number) confirmed laboratory or IITF results By Test Reason: 50 CFR Part 17 must be processed by the MRO before (a) Pre-employment (number) (b) Post-Accident (number) they are released to any other party. [FWS–R2–ES–2009–0077; 92220–1113– (c) Random (number) 0000; ABC Code: C3] * * * * * (d) Reasonable Suspicion/Cause (number) (l) In transmitting documents to (e) Return-to-Duty (number) RIN 1018–AW63 laboratories or IITFs, you must ensure (f) Follow-up (number) that you send to the laboratory or IITF (g) Type of Test Not Noted on CCF Endangered and Threatened Wildlife that conducts testing only the laboratory (number) and Plants; Establishment of a copy of the CCF. You must not transmit 2. Specimens Reported Nonessential Experimental Population other copies of the CCF or any ATFs to (a) Negative (number) of Sonoran Pronghorn in the laboratory or IITF. (b) Negative and Dilute (number) 3. Specimens Reported as Rejected for Southwestern Arizona * * * * * Testing (total number) 38. Appendix B is revised, to read as By Reason AGENCY: Fish and Wildlife Service, follows: (a) Fatal flaw (number) Interior.

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ACTION: Proposed rule; public hearing, Information Relay Services (FIRS) at guarantee that we will be able to do so. and availability of draft environmental 800–877–8339. Comments and materials we receive, as assessment. Public Hearing: We will hold our well as supporting documentation we public hearing at Logan Auditorium, used in preparing this proposed rule, SUMMARY: We, the U.S. Fish and Gila Bend High School, 308 North will be available for public inspection Wildlife Service (Service), propose to Martin Avenue, Gila Bend, AZ 85337. on http://www.regulations.gov, or by reestablish the Sonoran pronghorn, a For information requesting reasonable appointment, during normal business federally listed endangered mammal, accommodations to attend the hours, at the Cabeza Prieta NWR or the into its historical habitat in King Valley, information session or hearing, see the Arizona Ecological Services Office (see Kofa National Wildlife Refuge (Kofa PUBLIC COMMENTS section. ADDRESSES and FOR FURTHER NWR), in Yuma County, and to the INFORMATION CONTACT). Barry M. Goldwater Range—East FOR FURTHER INFORMATION CONTACT: (BMGR–E), in Maricopa County, in Curtis McCasland, Refuge Manager, Public Hearing southwestern Arizona. We propose to Cabeza Prieta National Wildlife Refuge, 1611 North Second Avenue, Ajo, AZ Persons needing reasonable reestablish the Sonoran pronghorn accommodations in order to attend and under section 10(j) of the Endangered 85321; by telephone (520–387–6483) or by facsimile (520–387–5359). participate in a public hearing should Species Act of 1973, as amended (Act), contact the Refuge Manager, Cabeza SUPPLEMENTARY INFORMATION: and to classify that reestablished Prieta NWR, at the address or phone population as a nonessential Public Comments number listed in the FOR FURTHER experimental population (NEP). This INFORMATION CONTACT section as soon as proposed rule provides a plan for We want the final rule to be as effective as possible and the final EA on possible. In order to allow sufficient establishing the NEP and provides for time to process requests, please call no allowable legal incidental taking of the proposed action to evaluate all potential issues associated with this later than one week before the hearing. Sonoran pronghorn within the defined Information regarding this proposal is NEP area. We have prepared a draft action. Therefore, we invite tribal and governmental agencies, the scientific available in alternative formats upon environmental assessment (EA) on this request. proposed action. community, industry, and other DATES: We request that you send us interested parties to submit comments Background or recommendations concerning any comments on this proposal by the close Regulatory of business on April 5, 2010, or at the aspect of this proposed rule and the public hearing. We will hold a public draft EA. Comments should be as We listed the Sonoran pronghorn information session from 4:30 p.m. to specific as possible. subspecies (Antilocapra americana 5:30 p.m., followed by a public hearing To issue a final rule to implement this sonoriensis) as endangered throughout from 7 p.m. to 8:30 p.m., on February proposed action and to determine its range on March 11, 1967 (32 FR 23, 2010. whether to prepare a finding of no 4001), under the Endangered Species ADDRESSES: Written Comments: You significant impact or an environmental Preservation Act of October 15, 1966, may submit information by one of the impact statement, we will take into without critical habitat. This subspecies following methods: consideration all comments and any was included as an endangered species • Federal eRulemaking Portal: http:// additional information we receive. Such when the Act was signed into law in www.regulations.gov. Search for docket communications may lead to a final rule 1973. The Act provides that species FWS–R2–ES–2009–0077 and then that differs from this proposal. All listed as endangered are afforded follow the instructions for submitting comments, including commenters’ protection primarily through the comments. names and addresses, if provided to us, prohibitions of section 9 and the • U.S. mail or hand-delivery: Public will become part of the supporting requirements of section 7. Section 9 of Comments Processing, Attn: FWS–R2– record. the Act, among other things, prohibits ES–2009–0077; Division of Policy and You may submit your comments and the take of endangered wildlife. ‘‘Take’’ Directives Management; U.S. Fish and materials concerning the proposed rule is defined by the Act as harass, harm, Wildlife Service; 4401 N. Fairfax Drive, and draft EA by one of the methods pursue, hunt, shoot, wound, kill, trap, Suite 222; Arlington, VA 22203. listed in the ADDRESSES section. We will capture, or collect, or attempt to engage We will post all information we not accept comments sent by e-mail or in any such conduct. Service regulations receive on http://www.regulations.gov. fax or to an address not listed in the (50 CFR 17.31) generally extend the This generally means that we will post ADDRESSES section. Finally, we will not prohibitions of take to threatened any personal information you provide consider hand-delivered comments that wildlife. Section 7 of the Act outlines us (see the INFORMATION REQUESTED we do not receive, or mailed comments the procedures for Federal interagency section below for more details). that are not postmarked, by the date cooperation to conserve federally listed Copies of Documents: The proposed specified in the DATES section. species and protect designated critical rule and draft EA are on http:// Comments must be submitted to habitat. It mandates that all Federal www.regulations.gov and available from http://www.regulations.gov before agencies use their existing authorities to our Web site at http://www.fws.gov/ midnight (Eastern Time) on the date further the purposes of the Act by southwest/es/Library/. In addition, the specified in the DATES section. carrying out programs for the supporting file for this proposed rule We will post your entire comment— conservation of listed species. It also will be available for public inspection, including your personal identifying states that Federal agencies will, in by appointment, during normal business information—on http:// consultation with the Service, ensure hours, at the Arizona Ecological www.regulations.gov. If your written that any action they authorize, fund, or Services Office, 201 North Bonita comment includes your street address, carry out is not likely to jeopardize the Avenue, Suite 141, Tucson, AZ 85745, phone number, or e-mail address, you continued existence of a listed species telephone 520–670–6144. Persons who may request at the top of your document or result in the destruction or adverse use a telecommunications device for the that we withhold this information from modification of designated critical deaf (TDD) may call the Federal public review. However, we cannot habitat. Section 7 of the Act does not

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affect activities undertaken on private proposed for listing and only two with the intent of establishing a separate land unless they are authorized, funded, provisions of section 7 apply—section herd in that area, as well. or carried out by a Federal agency. 7(a)(1) and section 7(a)(4). In these We have not designated critical Under section 10(j) of the Act, the instances, NEPs provide additional habitat for the Sonoran pronghorn. Secretary of the Department of the flexibility because Federal agencies are Section 10(j)(2)(C)(ii) of the Act states Interior can designate reestablished not required to consult with us under that critical habitat shall not be populations outside the species’ current section 7(a)(2). Section 7(a)(4) requires designated for any experimental range as ‘‘experimental.’’ With the Federal agencies to confer (rather than population that is determined to be experimental population designation, consult) with the Service on actions that nonessential. Accordingly, we cannot the relevant population is treated as are likely to jeopardize the continued designate critical habitat in areas where threatened for purposes of section 9 of existence of a species proposed to be we establish an NEP. the Act, regardless of the species’ listed. The results of a conference are in Biological designation elsewhere in its range. the form of conservation Threatened designation allows us The Sonoran subspecies of pronghorn recommendations that are optional as discretion in devising management (Antilocapra americana sonoriensis) the agencies carry out, fund, or programs and special regulations for was first described by Goldman (1945) authorize activities. Because the NEP is, such a population. Section 4(d) of the and is small in terms of cranial Act allows us to adopt whatever by definition, not essential to the measurements compared to other regulations are necessary and advisable continued existence of the species, then subspecies of pronghorn (Nowak and to provide for the conservation of a the effects of proposed actions affecting Paradiso 1983, p. 857). Historically, the threatened species. In these situations, the NEP will generally not rise to the Sonoran pronghorn ranged in the the general regulations that extend most level of jeopardizing the continued United States from approximately the section 9 prohibitions to threatened existence of the species. Section Santa Cruz River, Arizona, in the east, species do not apply to that species, and 10(j)(2)(c)(ii) precludes the designation to the Gila Bend and Kofa Mountains, the 10(j) rule contains the prohibitions of critical habitat for non-essential Arizona, to the north, and to Imperial and exemptions necessary and populations. As a result, a formal Valley, California, to the west. In appropriate to conserve that species. conference will likely never be required northwestern Sonora, Mexico, the Based on the best scientific and for Sonoran pronghorn established subspecies is thought to have occurred commercial data available, we must within the NEP area. Nonetheless, some historically as far south as Bahia Kino determine whether the experimental agencies (e.g., Bureau of Land and east to Santa Ana and Nogales. In population is essential or nonessential Management (BLM)) voluntarily confer Baja California, Mexico, the subspecies to the continued existence of the with the Service on actions that may occurred in the northeast from the U.S. species. The regulations (50 CFR affect a proposed species. Activities that Border south to the vicinity of Punta 17.80(b)) state that an experimental are not carried out, funded, or Estrella (Phelps and Webb 1981, pp. 20– population is considered essential if its authorized by Federal agencies are not 21; Service 2002, Fig. 2). Currently, loss would be likely to appreciably subject to provisions or requirements in three populations of the Sonoran reduce the likelihood of survival of that section 7. pronghorn are extant: (1) A U.S. population in southwestern Arizona, species in the wild. All other Sonoran pronghorn used to establish south of Interstate 8, west of Highway populations are considered an experimental population would 85, and east of the Copper and Cabeza nonessential. We have determined that come from a captive-rearing pen on this experimental population would not Prieta mountains (76 wild pronghorn), Cabeza Prieta NWR, provided be essential to the continued existence (2) a population in the El Pinacate appropriate permits are issued in of the species in the wild (see Status of Region of northwestern Sonora (50 accordance with our regulations (50 Proposed Population section below). pronghorn), and (3) a population south CFR 17.22) prior to their removal. The Therefore, the Service is proposing to and east of Mexico Highway 8 and west designate a nonessential experimental donor population is a captive-bred and north of Caborca, Sonora (354 population (NEP) for the species in this population derived primarily from wild pronghorn). The three populations are area. stock at Cabeza Prieta NWR and from a geographically isolated due to barriers For the purposes of section 7 of the wild Sonoran pronghorn population in such as roads and fences (Service 2002, Act, we treat an NEP as a threatened northwestern Sonora, Mexico. The pp. 4–10, Fig. 1). The ‘current range’ as species when the NEP is located within purpose of the captive population is to used at 10(j)(2)(A)—‘‘The Secretary may a National Wildlife Refuge or unit of the provide stock for augmenting existing authorize the release (and the related National Park Service, and section U.S. and Mexican populations of transportation) of any population 7(a)(1) and the consultation Sonoran pronghorn, as well as (including eggs, propagules, or requirements of section 7(a)(2) of the supplying founder animals for individuals) of an endangered species or Act apply. Section 7(a)(1) requires all establishment of an additional U.S. a threatened species outside the current Federal agencies to use their authorities herd(s), in accordance with recovery range of such species * * *’’ is defined to carry out programs for the actions 2.1–2.4 of the Sonoran by the boundaries described in part (1). conservation of listed species. Section Pronghorn Recovery Plan (USFWS Consistent with years of survey data, we 7(a)(2) requires that Federal agencies, in 2002). The proposed population are confident that no Sonoran consultation with the Service, ensure establishment would involve two pronghorn population occurs outside of that any action authorized, funded, or phases: (1) Construction and operation the current range as defined in part (1) carried out is not likely to jeopardize the of a captive-breeding pen at Kofa NWR, (Phelps 1981, pp. 23–24; Service 2002, continued existence of a listed species with subsequent releases to establish a pp. 16 and 47). or adversely modify its critical habitat. second herd; and (2) relocation of excess Threats to the Sonoran pronghorn When NEPs are located outside a Sonoran pronghorn from the existing include (1) highways, fences, railroads, National Wildlife Refuge or National breeding pen at Cabeza Prieta NWR to developed areas, and irrigation canals Park Service unit, then for the purposes the eastern portion of the BMGR–E, east that block access to essential forage or of section 7, we treat the population as of Highway 85 and south of Interstate 8, water resources; (2) a variety of human

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activities that disturb pronghorn or 1998, and 2002. Major recovery actions in recent years throughout the range of degrade habitat, including livestock include: (1) Enhance present the U.S. population. Four forage grazing in the United States and Mexico; populations of Sonoran pronghorn by enhancement plots, each consisting of a military activities; recreation; poaching providing supplemental forage and/or well, pump, pipelines, and irrigation and hunting; clearing of desert scrub water, (2) determine habitat needs and lines, have been developed to irrigate and planting of buffelgrass (Pennisetum protect present range; (3) investigate and the desert and produce forage for ciliare) in Sonora; gold mining southeast address potential barriers to expansion pronghorn. Another plot is nearing of Sonoyta, Sonora; dewatering and of presently used range, and investigate, completion, and two additional plots development along the Gila River and evaluate, and prioritize present and will be installed over the next 5 years. Rı´o Sonoyta; and high levels of potential future reintroduction sites These crucial projects, intended to pull undocumented immigration and drug within the historical range; (4) establish the U.S. population back from the brink trafficking across the international and monitor a new, separate herd(s) to of extinction, have been cooperative border and associated law enforcement guard against catastrophes decimating efforts among the Service, AGFD, response; (3) wildfire fueled by the core population; (5) continue Marine Corps Air Station—Yuma, Luke nonnative perennial and ephemeral monitoring populations and maintain a Air Force Base, BLM, and OPCNM, with plants that have increased fine fuels and protocol for a repeatable and volunteer efforts from the Arizona allowed fire to become a much more comparable survey technique; and (6) Desert Bighorn Sheep Society, Arizona frequent event in the Sonoran Desert; (4) examine additional specimen evidence Antelope Foundation, and the Yuma drought and associated limited food and to assist in verification of taxonomic Rod and Gun Club. water; and (5) small population size and status (Service 1998, pp. iii–iv). The The U.S. wild population of Sonoran random changes in demographics. 2002 Supplement did not include pronghorn has rebounded from 21 in Populations at low levels may delisting criteria; however, eight short- 2002 to 76 in 2008; this increase has experience random variations in sex term recovery actions were identified as been facilitated by the collaborative ratios, age distributions, and birth and necessary to downlist the species to recovery efforts for this species. death rates among individuals, which threatened. The supplement goes on to However, at 76 animals currently, the can cause fluctuations in population say that accomplishing these actions U.S. population is far from being secure. size and possibly extinction (Service would provide the information We have begun to work with our 2002, pp. 14–35; Roughgarden 1998, pp. necessary to determine delisting criteria. Mexican partners on recovery of the 84–86). In very sparse populations, One of the short-term recovery actions Sonoran pronghorn in Sonora; although males may have trouble finding females, was ‘‘evaluating potential transplant the number of pronghorn in Sonora (404 reducing productivity (Brewer 1988, p. locations, establishing methodology and animals) is significantly greater than in 138). In 2002, a severe drought was the protocols, developing interagency the United States, the safety net of primary cause in a major die off of agreements (including with Mexico as waters and forage plots are not in place Sonoran pronghorn. The U.S. required), acquiring funding, and there, and a severe drought could population declined in 2002 by 83 initiating reestablishment projects’’ decimate those populations. percent to 21 animals (Bright and (Service 2002, p. 38). Reestablishment Areas Hervert 2005, p. 46). The Mexican populations declined at the same time, After the catastrophic die off of O’Brien et al. (2005) used landscape- but not to the same degree. The Sonoran pronghorn in 2002, the Service level classification and regression tree population southeast of Highway 8 and its partners embarked on a number and logistic regression models to assess declined by 18 percent, while the El of aggressive recovery actions to ensure potential Sonoran pronghorn habitat in Pinacate population declined by 26 the species’ continued existence and to southwestern Arizona, including percent. The differences between the begin to rebuild populations. The current and historical range, as a means rates of decline north and south of the cornerstone of these actions was a semi- of beginning the process of identifying border may be due to high levels of captive breeding facility, constructed in potential locations for establishing a human disturbance on the U.S. side due Childs Valley, Cabeza Prieta NWR, in second U.S. Sonoran pronghorn herd. primarily to heightened levels of illegal 2003, and stocked with wild Sonoran Both models identified greater than immigration, smuggling, and law pronghorn in 2004. As of March 2009, 4,632 square miles (sq mi) (greater than enforcement response (Service 2008, p. 63 Sonoran pronghorn reside in the pen. 12,000 square kilometers (sq km)) of 55). Limited releases from the pen to the potential habitat (O’Brien et al. 2005, U.S. herd occurred in 2007 and 2008; pp. 28–30). The largest blocks of Recovery Efforts however, the objective is to produce 10 potential habitat outside of the current Restoring an endangered or to 25 fawns each year for release to the range, which were identified by both threatened species to the point where it current U.S. population, to newly models, were the Ranegras and is recovered is a primary goal of our established population(s) in the United Harquahala plains, King Valley at Kofa endangered species program. Thus, in States, and to augment Mexican NWR north of Interstate 8; Sentinel 1982 we published the Sonoran populations. This target number of fawn Plain and other areas to the west Pronghorn Recovery Plan (Plan) (Service production will likely be met in 2009. between Interstate 8 and the Gila River; 1982), which was produced by a A number of other projects are and areas not currently occupied south Recovery Team comprised of underway to increase availability of of Interstate 8 and immediately west of representatives from the Arizona Game green forage and water during dry Highway 85. The models also identified and Fish Department (AGFD), Cabeza periods and seasons, offsetting to some a large habitat block east of Highway 85 Prieta NWR, BLM, Organ Pipe Cactus extent the effects of drought and barriers and south of Interstate 8 as potential National Monument (OPCNM), that prevent Sonoran pronghorn from habitat. The authors did not evaluate Commission of Ecology and Sustainable accessing greenbelts and water, such as potential habitats in the far eastern Development for the State of Sonora the Gila River and Rı´o Sonoyta. Nine portions of the historical range of the (CEDES), and National Commission for emergency water sources (six on Cabeza pronghorn in Arizona (O’Brien et al. Protected Natural Areas (CONANP). The Prieta NWR, one on OPCNM, and two 2005, Figs. 3 and 4). O’Brien et al. (2005, Plan was subsequently revised in 1994, on BMGR-West) have been constructed p. 32) further explained that their

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models were an initial step towards establish Sonoran pronghorn as a pronghorn of the opposite sex and identifying and evaluating potential nonessential experimental population in reproducing is even more remote. translocation sites. They recommended these areas under section 10(j) of the The status, as endangered or a soliciting public input, reviewing Act. member of the NEP, of any dispersing predator presence and density, fencing, The NEP encompasses Areas A and D, pronghorn that manages to cross and the presence of preferred forage and as well as all areas into which Sonoran Highway 85 or other barriers between water as additional steps in the pronghorn are likely to disperse. The the NEP and the current range would be evaluation process (O’Brien et al. 2005, NEP is defined as follows: In Arizona, defined geographically. Any Sonoran p. 32). an area north of Interstate 8 and south pronghorn within the NEP area would An Interdisciplinary Team (IDT), of Interstate 10, bounded by the be considered a member of the comprised of members of the Sonoran Colorado River on the west and nonessential experimental population Pronghorn Recovery Team, as well as Interstate 10 on the east; and an area (including any dispersing animals from representatives from land management south of Interstate 8, bounded by within the current range that cross into agencies located in southwestern Highway 85 on the west, Interstates 10 the NEP area), whereas any Sonoran Arizona, was convened in 2008 to and 19 on the east, and the United pronghorn outside of the NEP would be address these and other issues and States-Mexico border on the south. fully protected under the Act as an Section 10(j) of the Act requires that considerations, and to recommend endangered species. an experimental population be wholly The geographical extent that we are specific areas for establishing an separate geographically from other wild proposing for NEP designation is larger additional U.S. herd or herds. populations of the same species. The than needed, as only portions of this Development of alternatives for Colorado River; Interstates 8, 10, and 19; proposed NEP area contain suitable population establishment entailed and Highway 85, which form the habitat. Within the NEP, Sonoran consideration of three key variables: (1) boundaries of the NEP, are barriers to pronghorn habitat is limited to valleys. Geographical areas for establishing movement. Interstate 8 separates Area A Mountainous areas, such as the Kofa, populations outside of the current from the current U.S. population, and Castle Dome, Palomas, and Gila Bend range; (2) potential establishment Highway 85 forms a boundary between mountains, do not provide habitat for techniques; and (3) legal status of Area D and the current U.S. population. this species; nor do developed areas established populations under the Act. We do not expect Sonoran pronghorn to within the valleys, such as agricultural Each of these three key variables had a cross these barriers. Brown and areas and towns and cities. However, range of options. The IDT evaluated the Ockenfels (2007, pg. 29) found that the NEP area represents what we believe three key variables to arrive at the most high-speed highways with right-of-way to be the maximum geographical extent effective combinations of geographical fences, such as these, were virtually to which Sonoran pronghorn could areas, establishment techniques, and Sonoran pronghorn-proof due to move if released in Areas A and D. Once legal status options. The IDT conducted stringent fencing and high volume released into these areas, we expect the a mapping exercise, to identify areas traffic and that interstate highways are Sonoran pronghorn population(s) to within the historical range of Sonoran nothing short of impassable for the grow and expand into adjacent suitable pronghorn in the United States that species. Only once has a pronghorn habitats, potentially moving to the were under Federal or State ownership been known to cross Interstate 8 (1973, boundaries of the NEP. However, and that contained suitable habitat for Phelps 1981, p. 27) and only once has mountainous areas and developed the species. The result of this exercise a pronghorn been known to cross agriculture and urban areas in the NEP was identification of seven potential Highway 85 and its associated right-of- would not be occupied because these reestablishment areas, designated Areas way fences into BMGR–E (2008; Howard areas are not considered habitat for A through G. The seven areas were then 2008, p. 1). Sonoran pronghorn. In the unlikely ranked by the IDT, using seven selection Nonetheless, in the unlikely event event that any of the released Sonoran criteria, to determine the best areas for that a pronghorn moves outside the pronghorn, or their offspring, move translocation. Area A (King Valley at NEP, the individual, lone pronghorn across interstate highways or other Kofa NWR, and adjacent portions of does not constitute a population. The barriers (e.g., river or mountainous primarily Yuma Proving Grounds and Department defines ‘‘population’’ as a areas, developed agriculture areas, or BLM lands) and Area D (primarily potentially self-sustaining group ‘‘in urban areas) to outside the designated portions of the BMGR–E, BLM lands, common spatial arrangement,’’ (50 CFR NEP area (but not into the area occupied and a portion of the Tohono O’odham 17.3) and thus determined a ‘‘geographic by the wild population), then the Nation, all east of Highway 85) were separation’’ is any area outside the area Service would evaluate the need, in the ranked 1 and 2, respectively. Public in which a particular population context of the 10(j) requirements, to scoping for the Sonoran pronghorn sustains itself. See Wyoming Farm amend the 10(j) rule to enlarge the population establishment project Bureau Fed’n, 987 F. Supp. at 1373; 59 boundaries of the NEP area to include included three open houses held on FR at 60256. These definitions preclude the area of the expanded population. As successive evenings at Yuma, Tucson, the possibility of population overlap as discussed above, the likelihood of and Phoenix, AZ, and was conducted in a result of the presence of individual pronghorn moving from the NEP area November 2008. After consideration of dispersing pronghorn—by definition into the current range is very low. public input, two alternatives were lone dispersers do not constitute a carried forward in the National population or even part of a population, Release Procedures Environmental Policy Act (NEPA) (42 since they are not in ‘‘common spatial The IDT developed the methods of U.S.C. 4321 et seq.) process, including arrangement’’ sufficient to interbreed release of Sonoran pronghorn into Areas establishment of Sonoran pronghorn in with other members of a population. A and D with the objective of Areas A and D, which is what we are The evidence suggests that the maximizing the likelihood of success in proposing in this document. Specific likelihood of a lone pronghorn crossing establishing herds, while minimizing population establishment techniques are the NEP boundary is very low, so it the impact to the source population (the described for both areas (see Release follows that the probability of that lone animals in the captive breeding pen at Procedures, below), and we propose to disperser encountering another Cabeza Prieta NWR) and limiting

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mortality or injury to translocated CPNWR—see contact information jeopardize the continued existence of Sonoran pronghorn to the maximum above—for copies of this document). the species in the wild. Establishment of additional Sonoran pronghorn extent possible. In King Valley, Kofa Status of Proposed Population NWR (Area A), a rectangular-shaped, 0.5 populations within the species’ sq mi (1.29 sq km) captive-breeding pen We have determined that these historical range is a necessary step in would be constructed, beginning in proposed populations are nonessential. recovery (Service 2002, p. 38). spring 2010. The pen would include This determination has been made for The special rule that accompanies this water sources and irrigated areas to the following reasons: 10(j) rule is designed to broadly exempt (a) Wild populations of the Sonoran enhance forage production, as well as from the section 9 take prohibitions any pronghorn, totaling about 470 animals, two observation towers from which the take of Sonoran pronghorn that is currently exist at: (1) Cabeza Prieta animals would be monitored. In incidental to otherwise lawful activities. NWR, OPCNM, BMGR, and adjacent December 2010 and January 2011, 11 BLM lands, (2) in the El Pinacate region We provide this exemption because we pronghorn (10 females and 1 male) of Sonora, and (3) south and east of believe that such incidental take of would be moved to the pen from the Highway 8 in Sonora. members of the NEP associated with captive-rearing pen at Cabeza Prieta (b) A captive-breeding pen at Cabeza otherwise lawful activities is necessary NWR. These animals would be Prieta NWR maintains a captive and advisable for the conservation of the individually tranquilized using a dart population and provides stock to species, as activities that currently occur gun and moved one or two at a time by augment the wild populations in or are anticipated in the NEP area are helicopter. Biennial rotation of the Arizona and Sonora. The pen has been generally compatible with Sonoran breeding male and death of any Sonoran highly successful. First stocked with pronghorn recovery. For example, in pronghorn in the breeding pen at Kofa pronghorn in 2004, the original group of Area A, there are vast expanses of open NWR would require additional flights to 11 animals has grown to 71 as of this valleys without major barriers to bring new animals from Cabeza Prieta writing (October 2009), and another 21 pronghorn movement that provide NWR. Methods perfected at Cabeza pronghorn have been released from the suitable habitat. These valleys include Prieta NWR will be employed in these pen into the wild. King Valley at Kofa NWR, Palomas activities, which have been used (c) The first priority for use of animals Plain, the southern end of the Ranegras successfully with minimal mortality of in the captive-breeding pen at Cabeza Plain, and portions of the Yuma Proving pronghorn. Assuming successful Prieta NWR is to augment herds within Grounds. The La Posa Plain and Castle captive-breeding at the Kofa NWR pen, the boundaries of the current range of Dome Plain also provide habitat. up to 20 Sonoran pronghorn would be the species; hence, relocation of Highway 95 runs north-south through released annually into suitable habitats Sonoran pronghorn from the captive those plains, and although it may outside of but adjacent to the pen site breeding pen to Kofa NWR would not somewhat inhibit movement to the west at Kofa NWR, beginning as early as the inhibit the augmentation efforts for the side of those plains, it is not a winter of 2012 or 2013 and recurring herds within the boundaries of the substantial barrier because it lacks right- each winter until 2020. Sonoran current range of the species. Sonoran of-way fences. In Area D, there is pronghorn in the pen, as well as animals pronghorn produced at the Cabeza considerable habitat in the valleys released, would be closely monitored to Prieta pen that are not needed to among the Sauceda, Sand Tank, determine success or need for adaptive augment herds within the current range Batamote, and other mountains in that management. Success criteria will be or to populate the Kofa NWR pen would region. There are existing military developed by the recovery team prior to be used to establish a population in activities at Yuma Proving Grounds in the release of any animals. Area D. Area A and BMGR–E in Area D, but Concurrently, if excess animals are (d) The possible failure of this pronghorn have coexisted with military available from the captive breeding pen proposed action would not appreciably activities for many years at the BMGR at Cabeza Prieta NWR (not needed to reduce the likelihood of survival of the (deVos 1989, pp. 15–16; Krausman et al. augment existing herds or for the pen at species in the wild because (1) the first 2001, pp. 2, 80–90; Krausman et al. Kofa NWR), these animals would be priority for use of pronghorn from the 2005, pp. 20–22); as a result, we believe captured from the pen, transported to a captive-breeding pen at Cabeza Prieta they would persist with the similar holding pen in Area D, held NWR is to augment the wild herd, and activities conducted at Yuma Proving temporarily, and then released as a (2) recovery actions have been Grounds and in Area D. Although some group. The holding pen in Area D is implemented in the United States to forms of military activities could located in the Hat Mountain area ameliorate the effects of drought on the potentially result in incidental death or (locally known as BMGR-East ‘‘Area B’’) species (U.S. Fish and Wildlife Service injury of individual pronghorn, no in Maricopa County, Arizona. Ideally, 2009, p. 9, 18–19). incidental take has ever been the Sonoran pronghorn would be (e) Through programs of work documented due to military activities. captured together and moved quickly to endorsed by the Canada/Mexico/U.S. There would be some likelihood of a holding pen, allowed to recover for a Trilateral Committee for Wildlife and Sonoran pronghorn drownings in canals brief period, and released together. Ecosystem Conservation and in Area A. Canals are present in Released animals in Area D would be Management, the U.S. Fish and Wildlife agricultural areas on the southern, monitored via aircraft and on-the- Service and AGFD coordinate with eastern, and northeastern portions of ground personnel to determine survival, Mexican partners on recovery of the Area A; Sonoran pronghorn are known reproduction, and other measures of Sonoran pronghorn in Mexico. to drown in such canals (Rautenstrauch success. Release techniques will be If this proposal is adopted, we would and Krauseman 1986, p. 9). However, revised as needed to ensure success. ensure, through our section 10 the major canal on the southern border You can find additional description of permitting authority and the section 7 of Area A, the Wellton-Mohawk Canal, the release procedures and monitoring consultation process, that the use of is equipped with ramps and steps protocols in the draft EA (find under Sonoran pronghorn from the donor designed to prevent ungulate docket FWS–R2–2009–0077 at http:// population at Cabeza Prieta NWR for drownings, and a series of wildlife www.regulations.gov or contact releases in Areas A or D is not likely to waters exist to the north of the canal as

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alternative water sources. Most of the Mountain Park, and Coronado National provided that the take is unintentional, canals elsewhere in Area A are too small Forest. Due to the management not due to negligent conduct, and is in to result in Sonoran pronghorn flexibility provided by the NEP accordance with the special rule that is entrapment. Other activities, such as designation and the special rule, we do a part of this 10(j) rule. However, if recreational hunting and camping, not anticipate that establishment of there is evidence of intentional take of vehicle use, livestock grazing, and Sonoran pronghorn in Areas A or D and a Sonoran pronghorn within the NEP small-scale rural or agricultural subsequent dispersal of Sonoran that is not authorized by the special development, are anticipated to either pronghorn from the release sites will rule, we would refer the matter to the have minimal effects on Sonoran affect management on Tribal, BLM, appropriate law enforcement entities for pronghorn or would be limited in extent National Forest, Department of Defense, investigation. We expect levels of (e.g., rural and agricultural State, or private lands. Through section incidental take to be low because, as development). 7 consultations on NWR lands and discussed in part (d) of Status of Newly Under section 7(a)(1) of the Act, all National Park Service lands, some Established Population above, the Federal agencies are mandated to use changes in management may occur to establishment of new populations is their authorities to conserve listed reduce adverse effects to pronghorn, compatible with most existing human species. In addition, the BLM has a including minimizing the likelihood of use activities and practices for the area. written policy of conferring with the incidental take. However, we believe In the current range of the pronghorn in Service, under section 7(a)(4), on their few changes would be needed, because the U.S., no incidental take has been actions that may affect proposed management of these lands already is documented from military activities, species. Some activities would have broadly compatible with Sonoran recreation, use of highways, and most greater potential to compromise the pronghorn recovery. Other Federal other activities that occur both in the success of the Sonoran pronghorn agencies that propose actions on Kofa current range and in the NEP; the reestablishment than those described NWR or National Park Service lands exception being canals, in which above. For instance, construction of new would also be required to consult with Sonoran pronghorn have drowned on highways or new canals in the NEP us under section 7, if such activities several occasions. More specific could create barriers to movement and may affect Sonoran pronghorn. For information regarding take can be found bisect important pronghorn habitats. instance, some activities conducted by in the Proposed Regulation There is also the potential for BLM to Yuma Proving Grounds (e.g., overflights Promulgation section of this proposed permit large-scale solar power plants, of Kofa NWR) would be subject to the rule. which would be constructed in the consultation requirements. Some (b) Special handling: In accordance valleys and could eliminate up to tens Federal agencies, such as BLM, that with 50 CFR 17.21(c)(3), any employee of thousands of acres of habitat. Other propose actions outside of Kofa NWR or or agent of the Service, any other BLM-authorized projects, such as National Park Service lands may elect to Federal land management agency, or agricultural leases, could also work with the Service voluntarily State personnel, designated for such potentially remove large blocks of through the section 7(a)(4) conferring purposes, may in the course of their habitat and perhaps compromise the process to ensure that adverse effects of official duties, handle Sonoran success of this project. The potential for their actions on Sonoran pronghorn in pronghorn to aid sick or injured these projects to impact the the NEP area are minimized. Sonoran pronghorn, or to salvage dead reestablishment is probably greatest on The Service (Cabeza Prieta NWR, Kofa Sonoran pronghorn. However, non- BLM lands in the valleys to the east of NWR, and Ecological Services), AGFD, Service personnel and their agents Kofa NWR. The Service may have the OPCNM, Luke Air Force Base, BLM, and would need to acquire permits from the opportunity through the section 7(a)(4) other partners, in close coordination Service for these activities. conferring process to work with the with the Sonoran Pronghorn Recovery (c) Coordination with landowners and BLM to minimize the potential adverse Team, would plan and manage the land managers: The Service and effects of solar plants, agricultural establishment of new populations of cooperators have identified issues and leases, highways, or other projects that Sonoran pronghorn. This group would concerns associated with the proposed may compromise Sonoran pronghorn closely coordinate on releases, Sonoran pronghorn population recovery. monitoring, and coordination with establishment through the NEPA landowners and land managers, among scoping comment period. The proposed Management other tasks necessary to ensure population establishment also has been The lands within the NEP area are successful population establishment. discussed with potentially affected State managed and listed in descending order Management issues related to the agencies, Tribes, and private of acreage within areas A and D as Sonoran pronghorn NEP that have been landowners. Affected State agencies, follows: Area A—the Service (Kofa considered include: Tribes, landowners, and land managers NWR), Department of the Army (Yuma (a) Mortality: The regulations have either indicated support for, or no Proving Grounds), BLM, Arizona State implementing the Act define ‘‘incidental opposition to, the proposed population Lands Department, private landowners, take’’ as take that is incidental to, and establishment, provided a NEP is and Colorado River Indian Tribes; Area not the purpose of, the carrying out of designated and a special rule is D: Tohono O’odham Nation, BLM, an otherwise lawful activity (50 CFR promulgated to exempt incidental take Department of the Air Force (BMGR–E), 17.3), such as agricultural activities and and some forms of intentional take for private owners, and Arizona State Land other rural development, ranching, management purposes from the section Department. Outside of Areas A and D, military training and testing, camping, 9 take prohibitions. More specific but within the NEP, land ownership is hiking, hunting, vehicle use of roads information regarding take can be found similar, but also includes lands within and highways, and other activities that in the Proposed Regulation the Gila River Indian Reservation, Ak- are in accordance with Federal, Tribal, Promulgation section of this proposed Chin Indian Reservation, Pascua Yaqui State, and local laws and regulations. If rule. Indian Reservation, San Xavier this 10(j) rule is finalized, incidental (d) Monitoring: A monitoring and Reservation, Buenos Aires NWR, take of Sonoran pronghorn within the adaptive management plan for the Saguaro National Park, OPCNM, Tucson NEP area would not be prohibited, population establishment program

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would be implemented by the Service, (e) Public awareness and cooperation: (d) Whether the proposed rule raises AGFD, and other partners to determine Public scoping for the Sonoran novel legal or policy issues. pronghorn population establishment if the program is successful. The Regulatory Flexibility Act (5 U.S.C. 601 project was conducted in the fall of monitoring will assess all aspects of the et seq.) population establishment program, from 2008. Actions included an October 30, capture and movement of the animals to 2008, scoping letter sent to Under the Regulatory Flexibility Act the captive breeding pen (Area A) or approximately 6,000 names, a news (as amended by the Small Business holding area (Area D), monitoring of the release to local media sources, and a Regulatory Enforcement Fairness Act animals in these captive facilities, and series of three open houses held in the (SBREFA) of 1996; 5 U.S.C. 601 et seq., monitoring and tracking released Arizona cities of Yuma, Tucson, and whenever a Federal agency is required to publish a notice of rulemaking for Sonoran pronghorn in the release areas, Phoenix, during November 18–20, 2008. any proposed or final rule, it must including Sonoran pronghorn waters We accepted written public scoping prepare, and make available for public and any forage enhancement vegetation comments until December 12, 2008. We comment, a regulatory flexibility plots developed to support the received 44 written responses about the project. We discuss issues identified in analysis that describes the effect of the established herds. Monitoring of rule on small entities (i.e., small released Sonoran pronghorn will be the responses in the EA. The IDT used these issues to refine the proposed businesses, small organizations, and conducted to determine the following: small government jurisdictions). (1) Mortality and recruitment rates, (2) action and alternatives in the EA, and to identify mitigation measures to avoid or However, no regulatory flexibility causes of mortality among adult and analysis is required if the head of an juvenile pronghorn, (3) reliance on free- reduce potential project effects. The IDT also used the public concerns to agency certifies that the rule will not standing water sources, (4) movement have a significant economic impact on corridors and barriers to movements, determine which resources would be the greatest focus of the EA analysis. a substantial number of small entities. and (5) habitat preferences. Each SBREFA amended the Regulatory released animal will be fitted with an Peer Review Flexibility Act to require Federal ear tag and radio collar. A limited In accordance with our policy on peer agencies to provide a statement of the number of Sonoran pronghorn will be review, published on July 1, 1994 (59 factual basis for certifying that a rule fitted with Geographic Positioning FR 34270), we will provide copies of will not have a significant economic System (GPS) platform telemetry collars. this proposed rule to three or more impact on a substantial number of small It is expected the transmitters will appropriate and independent specialists entities. We are certifying that this rule function for 3 to 5 years. Telemetry in order to solicit comments on the will not have a significant economic flights with a fixed-wing aircraft will be scientific data and assumptions relating effect on a substantial number of small conducted twice a month. Each Sonoran to the supportive biological and entities. The following discussion pronghorn will be observed from an ecological information for this proposed explains our rationale. The area that would be affected if this altitude of 1,000 feet (ft) above ground NEP designation. The purpose of such proposed rule is adopted includes the level with the aid of binoculars. Group review is to ensure that the proposed release areas at Kofa NWR and BMGR– size and composition (sex and age), NEP designation is based on the best E and adjacent areas into which habitat type, and terrain will be scientific information available. We will pronghorn may disperse, which over recorded. Additional monitoring of invite these peer reviewers to comment time could include significant portions individual pronghorn and herd during the public comment period and of the NEP, where valley habitats for the movements will be done from the will consider their comments and pronghorn occur. Mountainous areas ground, particularly from high points information on this proposed rule and developed agriculture and urban where valley habitats of the pronghorn during preparation of a final areas in the NEP would not be occupied can be viewed. All monitoring flights determination. because these areas are not considered and on-the-ground surveillance will be Required Determinations habitat for Sonoran pronghorn. Because closely coordinated with and approved of the regulatory flexibility for Federal by the Tribal, military, and other land Regulatory Planning and Review (E.O. agency actions provided by the NEP managers and owners where such 12866) designation and the exemption for monitoring will occur. As Sonoran The Office of Management and Budget incidental take in the special rule, we pronghorn become established and (OMB) has determined that this do not expect this rule to have breed in the establishment areas, the proposed rule is not significant and has significant effects on any activities percentage of animals tagged or radio- not reviewed this proposed rule under within Tribal, Department of Defense, collared will decline over time, and Executive Order 12866 (E.O. 12866). BLM, National Wildlife Refuge, National additional animals may need to be OMB bases its determination upon the Park Service, State, or private lands captured and radio collared to following four criteria: within the NEP. On National Wildlife adequately monitor the herds. Ideally, at (a) Whether the proposed rule will Refuges and units of the National Park least 10 percent of a population will be have an annual effect of $100 million or System within the NEP, Federal action equipped with radio collars. Monitoring more on the economy or adversely affect agencies would be required to consult data will be assessed regularly by the an economic sector, productivity, jobs, with us, under section 7(a)(2) of the Act, Recovery Team, and methods will be the environment, or other units of the on any of their activities that may affect revised as needed to increase the government. the Sonoran pronghorn. However, likelihood of successful population (b) Whether the proposed rule will because current management of these establishment and to increase efficiency. create inconsistencies with other areas is consistent with the needs of the A comprehensive review, assessment, Federal agencies’ actions. pronghorn (see part (d) of Status of and report of the reestablishment (c) Whether the proposed rule will Proposed Population above), we do not program by the Recovery Team will materially affect entitlements, grants, anticipate that consultation would occur at a frequency of no less than once user fees, loan programs, or the rights significantly change proposed Federal every 5 years. and obligations of their recipients. actions on those lands. In portions of

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the NEP outside of National Wildlife pronghorn, and Federal agencies would beneficial or productive use of the land Refuge and National Park Service lands, only have to comply with sections or aquatic resources. This rule would in regard to section 7(a)(2), the 7(a)(2) and 7(a)(4) of the Act in these substantially advance a legitimate population is treated as proposed for areas. Therefore, this rulemaking is not government interest (conservation and listing and Federal action agencies are expected to have any significant adverse recovery of a listed species) and would not required to consult on their impacts to activities on private lands not present a barrier to all reasonable activities. Section 7(a)(4) requires within the NEP area. and expected beneficial use of private Federal agencies to confer (rather than property. Unfunded Mandates Reform Act (2 consult) with the Service on actions that U.S.C. 1501 et seq.) Federalism (E.O. 13132) are likely to jeopardize the continued existence of a proposed species. But In accordance with the Unfunded In accordance with Executive Order because the NEP is, by definition, not Mandates Reform Act (2 U.S.C. 1501 et 13132, we have considered whether this essential to the survival of the species, seq.): proposed rule has significant conferring will likely never be required (a) If adopted, this proposal will not Federalism effects and have determined for the Sonoran pronghorn populations ‘‘significantly or uniquely’’ affect small that a Federalism assessment is not within the NEP area. Furthermore, the governments. We have determined and required. This rule would not have results of a conference are advisory in certify under the Unfunded Mandates substantial direct effects on the States, nature and do not restrict agencies from Reform Act, 2 U.S.C. 1502 et seq., that on the relationship between the Federal carrying out, funding, or authorizing this proposed rulemaking will not Government and the States, or on the activities. Nonetheless, some agencies, impose a cost of $100 million or more distribution of power and such as BLM, voluntarily confer with us in any given year on local or State responsibilities among the various on actions that may affect proposed governments or private entities. A Small levels of government. In keeping with species. In addition, section 7(a)(1) Government Agency Plan is not Department of the Interior policy, we requires Federal agencies to use their required. As explained above, small requested information from and authorities to carry out programs to governments would not be affected coordinated development of this further the conservation of listed because the proposed NEP designation proposed rule with the affected resource species, which would apply on any will not place additional requirements agencies in Arizona. Achieving the lands within the NEP area. As a result, on any city, county, or other local recovery goals for this species would and in accordance with these municipalities. contribute to its eventual delisting and regulations, some modifications to (b) This rule will not produce a its return to State management. No proposed Federal actions within the Federal mandate of $100 million or intrusion on State policy or NEP area may occur to benefit the greater in any year (i.e., it is not a administration is expected; roles or Sonoran pronghorn, but we do not ‘‘significant regulatory action’’ under the responsibilities of Federal or State expect projects to be halted or Unfunded Mandates Reform Act). This governments would not change; and substantially modified as a result of proposed NEP designation for the fiscal capacity would not be these regulations. Sonoran pronghorn would not impose substantially directly affected. The If adopted, this proposal would any additional management or special rule operates to maintain the broadly authorize incidental take of protection requirements on the States or existing relationship between the State Sonoran pronghorn within the NEP other entities. and the Federal government and is area. The regulations implementing the Takings (E.O. 12630) being undertaken in coordination with Act define ‘‘incidental take’’ as take that the State of Arizona. Therefore, this rule is incidental to, and not the purpose of, In accordance with Executive Order does not have significant Federalism the carrying out of an otherwise lawful 12630, the proposed rule does not have effects or implications to warrant the activity such as, agricultural activities significant takings implications. When preparation of a Federalism Assessment and other rural development, ranching, populations of federally listed species under the provisions of Executive Order military training and testing, camping, are designated as NEPs, the Act’s 13132. hiking, hunting, vehicle use of roads regulatory requirements regarding those and highways, and other activities in populations are significantly reduced. Civil Justice Reform (E.O. 12988) the NEP area that are in accordance with Section 10(j) of the Act can provide In accordance with Executive Order Federal, Tribal, State, and local laws regulatory relief with regard to the 12988, the Office of the Solicitor has and regulations. Intentional take for taking of reestablished species within an determined that this rule would not purposes other than authorized data NEP area. For example, this proposed unduly burden the judicial system and collection or recovery purposes would rule would not prohibit the taking of would meet the requirements of sections not be permitted. Intentional take for Sonoran pronghorn in the NEP area (3)(a) and (3)(b)(2) of the Order. research or recovery purposes would outside of National Wildlife Refuge and Paperwork Reduction Act require a section 10(a)(1)(A) recovery National Park Service lands when such permit under the Act. take is incidental to an otherwise legal Office of Management and Budget The principal activities on private activity, such as agricultural activities (OMB) regulations at 5 CFR 1320, which property near the NEP area are and other rural development, ranching, implement provisions of the Paperwork agriculture, ranching, rural military training and testing, camping, Reduction Act (44 U.S.C. 3501 et seq.), development, and recreation. We hiking, hunting, vehicle use of roads require that Federal agencies obtain believe the presence of the Sonoran and highways, and other activities that approval from OMB before collecting pronghorn would not affect the use of are in accordance with Federal, State, information from the public. This lands for these purposes because there Tribal and local laws and regulations. proposed rule does not contain any new would be no new or additional A takings implication assessment is information collections that require economic or regulatory restrictions not required because this rule (1) will approval. OMB has approved our imposed upon States, non-federal not effectively compel a property owner collection of information associated entities, or members of the public due to suffer a physical invasion of property with reporting the taking of to the presence of the Sonoran and (2) will not deny all economically experimental populations (50 CFR

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17.84(p)(6)) and assigned control Energy Supply, Distribution or Use (E.O. References Cited number 1018–0095. We may not collect 13211) A complete list of all references cited or sponsor, and you are not required to On May 18, 2001, the President issued in this proposed rule is available upon respond to, a collection of information Executive Order 13211 on regulations request from the Cabeza Prieta NWR unless it displays a currently valid OMB that significantly affect energy supply, (see FOR FURTHER INFORMATION CONTACT). control number. distribution, and use. Executive Order Authors National Environmental Policy Act 13211 requires agencies to prepare Statements of Energy Effects when The primary authors of this proposed We have prepared a draft EA as undertaking certain actions. This rule is rule are staff members of Cabeza Prieta defined under the authority of the not expected to significantly affect NWR and the Service’s Arizona National Environmental Policy Act of energy supplies, distribution, and use. Ecological Services Office (see 1969. It is available from the Cabeza Because this action is not a significant ADDRESSES and FOR FURTHER Prieta NWR (see FOR FURTHER energy action, no Statement of Energy INFORMATION CONTACT). INFORMATION CONTACT section), http:// Effects is required. List of Subjects in 50 CFR Part 17 www.regulations.gov, and from our Web Clarity of This Regulation (E.O. 12866) Endangered and threatened species, site at http://www.fws.gov/southwest/es/ Exports, Imports, Reporting and Library/. We are required by E.O. 12866, E.O. 12988, and by the Presidential recordkeeping requirements, Government-to-Government Memorandum of June 1, 1998, to write Transportation. Relationship With Tribes all rules in plain language. This means Proposed Regulation Promulgation that each rule we publish must: In accordance with the President’s (1) Be logically organized; Accordingly, we propose to amend memorandum of April 29, 1994, (2) Use the active voice to address part 17, subchapter B of chapter I, title ‘‘Government-to-Government Relations readers directly; 50 of the Code of Federal Regulations, with Native American Tribal (3) Use clear language rather than as set forth below: Governments’’ (59 FR 22951), Executive jargon; PART 17—[AMENDED] Order 13175, and the Department of the (4) Be divided into short sections and Interior Manual Chapter 512 DM 2, we sentences; and 1. The authority citation for part 17 have consulted with 21 Tribal Nations (5) Use lists and tables wherever continues to read as follows: whose lands or interests might be possible. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. affected by this rule. The Tohono If you feel that we have not met these 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– O’odham Nation participated in scoping requirements, send us comments by one 625, 100 Stat. 3500; unless otherwise noted. meetings and provided comments on of the methods listed in the ADDRESSES 2. Amend § 17.11(h) by revising the draft documents and proposals. The Ak- section. To better help us revise the entry for ‘‘Pronghorn, Sonoran’’ under Chin Indian Community also provided rule, your comment should be as ‘‘MAMMALS’’ in the List of Endangered written comments. The only substantial specific as possible. For example, you and Threatened Wildlife to read as comments from Tribes were related to should tell us the numbers of the follows: cultural resource surveys at the specific sections are paragraphs that are sites where pens will be constructed, unclearly written, which sections for § 17.11 Endangered and threatened which we will do. sentences are too long, the sections wildlife. where you feel lists and tables would be * * * * * useful, etc. (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

MAMMALS

******* Pronghorn, Sonoran Antilocapra ameri- U.S.A. (AZ), Mexico. Entire, except where E 543 N/A NA cana sonoriensis. listed as an ex- perimental popu- lation.

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Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

Pronghorn, Sonoran Antilocapra ameri- U.S.A. (AZ), Mexico. In Arizona, an area XN ...... NA 17.84(v) cana sonoriensis. north of Interstate 8 and south of Interstate 10, bounded by the Colorado River on the west and Interstate 10 on the east; and an area south of Interstate 8, bounded by High- way 85 on the west, Interstates 10 and 19 on the east, and the U.S.-Mexico bor- der on the south.

*******

3. Amend § 17.84 by adding management regulations, hunting determination will be made as to the paragraph (v) to read as follows: regulations, Tribal law, and all other disposition of any live or dead applicable law and regulations, and specimens. § 17.84 Special rules—vertebrates. include, but are not limited to, military (7) No person may possess, sell, * * * * * training and testing, agriculture, rural deliver, carry, transport, ship, import, or (v) Sonoran pronghorn (Antilocapra and urban development, livestock export by any means whatsoever, any americana sonoriensis). grazing, camping, hiking, hunting, Sonoran pronghorn or Sonoran (1) The Sonoran pronghorn recreational vehicle use, sightseeing, pronghorn parts taken in violation of (Antilocapra americana sonoriensis) nature or scientific study, these regulations. (pronghorn) population identified in rockhounding, and geocaching, where (8) It is unlawful for any person to paragraph (v)(12) of this section is a such activities are permitted. attempt to commit, solicit another to nonessential experimental population (5) Pursuant to a Memorandum of commit, or cause to be committed, any (NEP). Understanding (MOU) among the offense defined in paragraphs (v)(2) and (2) No person may take this species, Service, Arizona Game and Fish (7) of this section. except as provided in paragraphs (v)(3) Department, and the Tribes listed in (9)(i) The boundaries of the through (6) of this section. paragraph (v)(4) of this section, any designated NEP area are based on the (3) Any person with a valid permit employee or agent of the parties to the maximum estimated range of pronghorn issued by the U.S. Fish and Wildlife MOU who is designated for such that are released in and become Service (Service) under § 17.32 may take purpose may, when acting in the course established within the NEP area. These pronghorn within the NEP area for of official duties, take a Sonoran boundaries are physical barriers to scientific purposes, the enhancement of pronghorn if such action is necessary to: movements, including major freeways propagation or survival of the species, (i) Aid a sick, injured, or orphaned and highways, and the Colorado River. and other conservation purposes Sonoran pronghorn, including rescuing All release sites will be within the NEP consistent with the Endangered Species such animals from canals; area. Act (Act). (ii) Dispose of a dead Sonoran (ii) All pronghorn found in the wild (4) A pronghorn may be taken within pronghorn specimen, or salvage a dead within the boundaries of the NEP area the boundaries of Yuma Proving specimen that may be useful for after the first releases will be considered Grounds; Barry M. Goldwater Range; scientific study; members of the NEP. Any pronghorn lands of the Arizona State Land (iii) Move a Sonoran pronghorn for occurring outside of the NEP area are Department; Bureau of Land genetic purposes or to improve the considered endangered under the Act. Management lands; privately owned health of the population; or (iii) The Service has designated the lands; and lands of the Tohono (iv) Capture and release a Sonoran NEP area to accommodate the potential O’odham Nation, Colorado River Indian pronghorn for relocation, to collect future movements of a wild pronghorn. Tribes, Gila River Indian Reservation, biological data, or to attach, service, or All released pronghorn and their Ak-Chin Indian Reservation, Pascua detach radio-telemetry equipment. progeny are expected to remain in the Yaqui Indian Reservation, and San (6) Any taking pursuant to paragraphs NEP area due to the geographical extent Xavier Reservation within the NEP area, (v)(3) through (5) of this section must be of the designation and substantial provided that such take is incidental to, reported as soon as possible by calling barriers to movement that form the and not the purpose of, the carrying out the U.S. Fish and Wildlife Service, boundaries of the NEP. of any otherwise lawful activity; and Arizona Ecological Services Office, 201 (10) The NEP will be monitored provided that such taking is reported as N Bonita Avenue, Suite 141, Tucson, closely for the duration of the program. soon as possible in accordance with AZ 85745 (520/670–6150), or the Cabeza Any pronghorn that is determined to be paragraph (v)(6) of this section. Prieta National Wildlife Refuge, 1611 sick, injured, or otherwise in need of Otherwise lawful activities are any North Second Avenue, Ajo, AZ 85321 special care will be recaptured to the activities in compliance with land (520/387–6483). Upon contact, a extent possible by Service and/or State

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or Tribal wildlife personnel or their first release of pronghorn into the NEP the Colorado River on the west and designated agent and given appropriate area. All reviews will take into account Interstate 10 on the east, and an area care. Such pronghorn will be released the reproductive success and movement south of Interstate 8, bounded by back to the wild as soon as possible, patterns of individuals released, food Highway 85 on the west, Interstates 10 unless physical or behavioral problems habits, and overall health of the and 19 on the east, and the U.S.-Mexico make it necessary to return them to a population. This evaluation will include border on the south. captive-breeding facility. a progress report. (11) The Service plans to evaluate the (12) The areas covered by this (13) Note: Map of the proposed NEP status of the NEP every 5 years to proposed nonessential experimental area for the Sonoran pronghorn in determine future management status population designation are in Arizona. southwestern Arizona follows. and needs, with the first evaluation They include the area north of Interstate BILLING CODE 4310–55–P occurring not more than 5 years after the 8 and south of Interstate 10, bounded by

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* * * * * You may submit comments, identified Plan (60 FR 14651, March 20, 1995). In Dated: January 20, 2010. by RIN 0648–AY31, by any one of the each of the intervening years between Thomas L. Strickland, following methods: 1995 and the present, minor revisions to • Electronic Submissions: Submit all the Plan have been made to adjust for Assistant Secretary for Fish and Wildlife and electronic public comments via the the changing needs of the fisheries. The Parks. Federal eRulemaking Portal http:// Plan allocates 35 percent of the Area 2A [FR Doc. 2010–2230 Filed 2–3–10; 8:45 am] www.regulations.gov TAC to Washington treaty Indian tribes BILLING CODE 4310–55–C • Fax: 206–526–6736, Attn: Sarah in Subarea 2A–1 and 65 percent to non- Williams. tribal fisheries in Area 2A. • Mail: Barry Thom, Acting The allocation to non-tribal fisheries DEPARTMENT OF COMMERCE Administrator, Northwest Region, is divided into three shares, with the National Oceanic and Atmospheric NMFS, Attn: Sarah Williams, 7600 Sand Washington sport fishery (north of the Administration Point Way NE, Seattle, WA 98115–0070. Columbia River) receiving 36.6 percent, Instructions: No comments will be the Oregon/California sport fishery 50 CFR Part 300 posted for public viewing until after the receiving 31.7 percent, and the comment period has closed. All commercial fishery receiving 31.7 comments received are a part of the percent. The commercial fishery is [Docket No. 100119028–0029–01] public record and will generally be further divided into a directed posted to http://www.regulations.gov commercial fishery that is allocated 85 RIN 0648–AY31 without change. All Personal Identifying percent of the commercial allocation and an incidental catch in the salmon Pacific Halibut Fisheries; Catch Information (for example, name, troll fishery that is allocated 15 percent Sharing Plan address, etc.) voluntarily submitted by the commenter may be publicly of the commercial allocation. The AGENCY: National Marine Fisheries accessible. Do not submit Confidential directed commercial fishery in Area 2A Service (NMFS), National Oceanic and Business Information or otherwise is confined to southern Washington Atmospheric Administration (NOAA), sensitive or protected information. (south of 46° 53.30’ N. lat.), Oregon, and Commerce. NMFS will accept anonymous California. North of 46° 53.30’ N. lat. (Pt. Chehalis), the Plan allows for incidental ACTION: Proposed rule. comments (enter N/a in the required fields if you wish to remain anonymous. halibut retention in the primary limited SUMMARY: NMFS proposes to approve Attachments to electronic comments entry longline sablefish fishery when and implement changes to the Pacific will be accepted in Microsoft Word, the overall Area 2A TAC is above Halibut Catch Sharing Plan (Plan) for Excel, WordPerfect, or Adobe PDF file 900,000 lb (408.2 mt). The Plan also the International Pacific Halibut formats only. divides the sport fisheries into six geographic subareas, each with separate Commission’s (IPHC or Commission) FOR FURTHER INFORMATION CONTACT: allocations, seasons, and bag limits. regulatory Area 2A off Washington, Sarah Williams, 7600 Sand Point Way The Area 2A TAC will be set by the Oregon, and California (Area 2A). NMFS NE, Seattle, WA, 98115. By phone at IPHC at its annual meeting on January proposes to implement the portions of 206–526–4646 or fax at 206–526–6736. the Plan and management measures that 26–29, 2010, in Seattle, WA. Following SUPPLEMENTARY INFORMATION: The are not implemented through the IPHC. the annual meeting the IPHC publishes Northern Pacific Halibut Act (Halibut the final TAC on their website and This includes tribal regulations and the Act) of 1982, at 16 U.S.C. 773c, gives the sport fishery allocations and produces a news release. Through this Secretary of Commerce (Secretary) proposed rule NMFS requests public management measures for Area 2A. general responsibility for implementing These actions are intended to enhance comments on the Pacific Council’s the provisions of the Halibut recommended modifications to the Plan the conservation of Pacific halibut, to Convention between the United States provide greater angler opportunity and the proposed domestic fishing and Canada (Halibut Convention). It regulations by [insert date of end of where available, and to protect requires the Secretary to adopt overfished groundfish species from comment period]. This allows the regulations as may be necessary to carry public the opportunity to consider the being incidentally caught in the halibut out the purposes and objectives of the fisheries. final Area 2A TAC before submitting Halibut Convention and the Halibut Act. comments on the proposed rule. The DATES: Comments on the proposed Section 773c of the Halibut Act States of Washington and Oregon will changes to the Plan and on the proposed authorizes the regional fishery conduct public workshops shortly after domestic Area 2A halibut management management councils to develop the IPHC meeting to obtain input on the measures must be received no later than regulations governing the Pacific halibut sport season dates. After the final Area 5 p.m., local time on February 19, 2010. catch in their corresponding U.S. 2A TAC is known and after NMFS ADDRESSES: Copies of the Plan and Convention waters that are in addition reviews public comments and Regulatory Impact Review (RIR)/Initial to, but not in conflict with, regulations comments from the states, NMFS will Regulatory Flexibility Analysis (IRFA) of the IPHC. Each year between 1988 issue a final rule for Areas 2A, 2C, 3A, are available from Barry Thom, Acting and 1995, the Pacific Fishery 3B, 4A, 4B, 4C, 4D, and 4E, Pacific Regional Administrator, Northwest Management Council (Pacific Council) halibut fisheries concurrent with its Region, NMFS, 7600 Sand Point Way developed a catch sharing plan in publication of the IPHC regulations for NE, Seattle, WA 98115–0070. Electronic accordance with the Halibut Act to the 2010 Pacific halibut fisheries. A 15 copies of the Plan, including proposed allocate the total allowable catch (TAC) day public comment period is necessary changes for 2010, and of the draft RIR/ of Pacific halibut between treaty Indian with this proposed rule to balance two IRFA are also available at the NMFS and non-treaty harvesters and among purposes, first to provide the public Northwest Region website: http:// non-treaty commercial and sport with enough time to comment on the www.nwr.noaa.gov, click on fisheries in Area 2A. proposed rule after the final TAC is ‘‘Groundfish & Halibut’’ and then click In 1995, NMFS implemented the decided by the IPHC, and second to on ‘‘Pacific Halibut’’. Pacific Council-recommended long-term incorporate the final U.S. domestic

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